City of Lincoln v. County of Placer

Filing 104

ORDER signed by Chief District Judge Kimberly J. Mueller on 4/3/23 ORDERING that the City's motion to strike is GRANTED IN PART as described in this order. The County's motion for leave to amend its answer and counterclaim is DENIED IN PART as described in this order. The County's motion for summary judgment on its counterclaims under 42 U.S.C. §§ 7613(f)(1) and (g)(2) is GRANTED IN PART as described in this order. The County's motion for summary judgment on the City's claims is DENIED. The Final Pretrial Conference is SET for 5/19/2023 at 10:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller. This order resolves ECF Nos. 68 , 73 , 78 and 79 . (Kastilahn, A) (Main Document 104 replaced on 4/4/2023) (Donati, J).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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City of Lincoln,

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Plaintiff and Counter
Defendant,

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No. 2:18-cv-00087-KJM-AC
ORDER

v.
County of Placer, et al.,
Defendant and
Counter Claimant.

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The City of Lincoln and the surrounding county, the County of Placer, disagree about who

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is responsible for cleaning up and monitoring the groundwater near the old landfill that both once

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used. The County moves for summary judgment. As explained in this order, disputes about the

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County’s liability cannot be resolved before trial, so the County is not entitled to summary

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judgment. But if the City ultimately proves its claims at trial, the court will equitably allocate the

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costs as the County argues it must. The court thus denies in part and grants in part the

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County’s motions for summary judgment.

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Two other ancillary motions about the County’s affirmative defenses are pending as well.

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The court denies the County’s request for leave to assert new immunities at this late stage and

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grants the City’s request to strike those new allegations of immunity from the County’s answer.

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I.

EVIDENTIARY DISPUTES AND OBJECTIONS
Several disputes about what evidence the court should consider are best resolved at the

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outset. The judges in this district, including the undersigned, have often cautioned litigants

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against terse and reflexive evidentiary objections at summary judgment, especially when the

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objector is the moving party. See, e.g., Lindell v. Synthes USA, 155 F. Supp. 3d 1068, 1071 (E.D.

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Cal. 2016); U.S. E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1052–53 (E.D. Cal. 2015);

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Hanger Prosthetics & Orthotics, Inc. v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126

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n.1 (E.D. Cal. 2008); Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal.

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2006). The court encourages counsel to review these orders to avoid unnecessary and

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unpersuasive objections in the future.
Generally, the admissibility of evidence at summary judgment is governed by different

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rules and different motivations than at trial. At summary judgment, Rule 56 allows objections to

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evidence when “the material cited . . . cannot be presented in a form that would be admissible in

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evidence.” Fed. R. Civ. P. 56(c)(2). As this language suggests, at summary judgment, the

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propriety of evidence depends not on its form, but on its content. Celotex Corp. v. Catrett,

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477 U.S. 317, 324 (1986); Block v. City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001).

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The party asking the court to consider evidence bears the burden to prove that it could be

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presented in admissible form. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.

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2002). If the opposing party objects, the proponent must direct the court to “authenticating

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documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or

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other evidentiary principles under which the evidence in question could be deemed

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admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385–86 (9th Cir. 2010). But if

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evidence falls short of the “formalities of Rule 56,” a district court may nonetheless exercise its

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discretion “to be somewhat lenient.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc.,

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5 F.3d 1255, 1261 (9th Cir. 1993).

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This standard makes some evidentiary objections a poor fit for summary judgment. That

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is true first and foremost of form objections and objections based on relevance, vagueness and

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speculation. To the extent these objections attack the content of evidence rather than its form,
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they duplicate Rule 56 itself. Courts disregard irrelevant, indecipherable or speculative evidence,

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see, e.g., Burch, 433 F. Supp. 2d at 1119, and Rule 56 does not permit litigants to oppose

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summary judgment on the basis of vague assertions or speculation, see Fed. R. Civ. P. 56(c)(1).

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Likewise, an objection that testimony is argumentative or mischaracterizes the record either calls

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for a credibility determination unsuited for summary judgment or would better be directed at the

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underlying evidence itself. See, e.g., Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d

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1023, 1034 (C.D. Cal. 2013). Courts also often overrule hearsay objections at summary

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judgment. For example, in reviewing a district court’s ruling on summary judgment, the Ninth

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Circuit has considered the hearsay contents of a diary whose substance would have been

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admissible in another form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003).

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Foundation and authenticity problems similarly are nonfatal if “the substance could conceivably

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be made admissible at trial.” Portnoy v. City of Davis, 663 F. Supp. 2d 949, 953 (E.D. Cal. 2009)

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(quotation marks omitted).

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Most of the parties’ objections fall within these categories. See, e.g., City’s Resp. Stmt.

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Facts No. 3, ECF No. 98-2 (objecting to evidence as “immaterial”); County’s Resp. Add’l Stmt.

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Facts No. 1 (arguing evidence mischaracterized). Because this order rests on only relevant and

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concrete evidence, the parties’ objections based on arguments about irrelevance, vagueness and

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speculation are moot. Nor will the court attempt to fill in the legal arguments and citations the

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parties have omitted. Cf. County’s Resp. Add’l Stmt. Facts No. 1 (objecting without elaboration

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that evidence is inadmissible hearsay). The court also declines to attempt to discern the

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justifications for hearsay objections. Most of the statements in question are not hearsay in any

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event. For example, many statements would be excluded from the rule against hearsay under the

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exception for “ancient documents.” See, e.g., id. (objecting to meeting minutes from 1949 as

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hearsay); cf. Fed. R. Evid. 803(16) (excluding from rule against hearsay any “statement in a

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document that was prepared before January 1, 1998, and whose authenticity is established”). The

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parties’ other objections are otherwise overruled without further discussion. The court has

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reviewed all documents and records cited in this order and for each has determined the evidence

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either would be admissible for the specified purpose or could likely be reduced to an admissible

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form at trial.

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II.

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BACKGROUND
The old Lincoln landfill is a six-acre square of grassy land in the low, rolling Sierra

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Nevada foothills just outside the City.1 It has been closed since 1976. Placer Cty. Resp. Stmt.

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Facts Nos. 1, 6, ECF No. 98-2. The City began operating the landfill in the early 1950s, id., but it

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might have been a “dumping grounds” for some time before then, see, e.g., Placer Cty. Council

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Meeting Mins. at 2 (Jan. 3, 1949), Orrell Decl. Ex. 1, ECF No. 86-1. When the landfill was open,

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it was where the City’s garbage haulers dumped whatever refuse they had collected from Lincoln

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homes and businesses. See City Resp. First Interrogs. at 11–12, Parker Decl. Ex. 1, ECF

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No. 79-2.

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People living and working nearby, including people from the rural areas in the

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surrounding county, also could haul and dump their own waste. City Answer ¶ 9, ECF No. 11.

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The County did not operate a nearby landfill of its own. See Cty. Resp. to Req. for Admission

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Nos. 8, 31–37, Orrell Decl. Ex. 9, ECF No. 86-1. Instead, it paid the City a fee to ensure County

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residents from outside Lincoln could use the dump free of charge. See, e.g., Placer Cty. 1953–

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1954 Budget, Orrell Decl. Ex. 11 at 9, ECF No. 86-1; Oberholtzer Letter (July 5, 1967), Orrell

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Decl. Ex. 26, ECF No. 87-1. The size of that fee was sometimes contentious. The City often

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claimed the County was not paying its fair share of the landfill’s costs. In 1962, for example, a

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city engineer claimed more than half of the traffic to the dump originated outside city limits, and

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he estimated that forty percent of the waste was from outside Lincoln. See Thompson Letter
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The court grants the partially unopposed request for judicial notice of these and several
other facts about the landfill and its regulatory history, which can readily be verified from
publicly available sources and are subject to no reasonable dispute. See Fed. R. Evid. 201(b);
Req. J. Not., ECF No. 79-4. For example, the landfill’s location, size, dimensions and other
characteristics are summarized in the files from the Central Valley Region of the California
Regional Water Control Board. See 1991 WDR, Req. J. Not. Ex. 3, ECF No. 79-4; 1991 MRP,
Req. J. Not. Ex. 4, ECF No. 79-4; 2003 WDR, Req. J. Not. Ex. 6, ECF No. 79-4. The court
declines to take judicial of disputed information in those documents not cited here. Finally,
because the County has moved for summary judgment, the evidence summarized in this section is
presented in the light most favorable to the City. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587–88 (1986).
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(Jan. 5, 1962), Orrell Decl. Ex. 17, ECF No. 86-1. But later, when the City proposed a fee for

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out-of-town County residents, the local newspaper reported talk of a boycott, and the City

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reconsidered. See Orrell Decl. Exs. 30–33, 36, ECF No. 87-1.

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In paperwork the City sent to state authorities while the landfill was open, it described the

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landfill’s contents as typical of the refuse one might find at the curb in any neighborhood—trash,

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garbage, paper, leaves, and lawn and tree trimmings. See Applications, Parker Ex. 3, ECF

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No. 79-2. But some of those who knew the landfill from that time, including some of the City’s

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former employees, remember more dangerous waste reaching its final resting place in the old

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dump. There were cars, batteries, air conditioners, refrigerators and other appliances, for

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example, and perhaps drycleaning waste as well. See Ojeda Dep. at 191–93, Orrell Decl. Ex. 41,

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ECF No. 87-1; Pasillas Dep. at 193–94, Orrell Decl. Ex. 42, ECF No. 87-1; Parker Decl. Ex. 2, 4,

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ECF No. 79-2. As far as the local authorities can tell, there was no other place nearby designated

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for locals to discard dangerous waste. See Cty. Resp. to Req. for Admission No. 36, Orrell Decl.

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Ex. 9, ECF No. 86-1.

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We know today that hazardous substances are buried in the landfill. Resp. Add’l Stmt.

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Fact No. 25, ECF No. 98-5. Hazardous waste from these substances is in the groundwater below

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and around the landfill, too. See Cal. Reg’l Water Quality Control Bd., Central Valley Region,

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Solid Waste Assessment Test Exemption (Jan. 30, 1990), Req. J. Not. Ex. 2 at 2–3, ECF

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No. 79-4; 2003 WDR at 4, Req. J. Not. Ex. 6 at 14, ECF No. 79-4. The City hired an

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environmental engineer, George Savage, to give an opinion about the likely sources of this waste.

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He believes the substances came both from waste we would think of today as hazardous or

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dangerous, such as pesticides and solvents, as well as more common garbage we may not

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necessarily associate with dangerous chemicals, like paper. Savage Rep. at 2–3, Orrell Decl.

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Ex. 45, ECF No. 87-1. Paper was commonly printed with ink that contained lead. Savage Dep.

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at 193, Orrell Decl. Ex. 44, ECF No. 87-1. Whatever the specific sources of these substances

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might be, however, Savage concluded their route to the landfill was no mystery. Hazardous

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substances were in the garbage people put in their cans at home and brought to the landfill on

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their own. See Savage Rep. at 3.
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Problems first arose in the late 1960s, while the landfill was still open, when an inspection

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by the regional water quality control board revealed that water contaminated by waste within the

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landfill had seeped into the ground nearby. Obernholtzer Letter (Nov. 14, 1968), Parker Decl.

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Ex. 4, ECF No. 79-2. In 1968, the City said it would keep the landfill trenches above the historic

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groundwater level around the dump, divert rainfall away from the landfill and not dispose of any

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wastes containing “liquid or soluble chemicals of a toxic nature.” Id. But the City also made sure

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to explain it was not currently accepting that type of waste in any event, as far as it knew. Id.

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The water board then issued its first set of requirements for discharges from the landfill: (1) no

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pollution of ground or surface water, (2) no nuisance caused by “odors or unsightliness,” (3) no

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direct discharge of solid or liquid wastes, “including leachate,” into the ground or surface water,

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and (4) no discharge of toxic chemicals. 1968 WDR, Req. J. Not. Ex. 1, ECF No. 79-4.

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Many years later, after the landfill closed, a consulting company prepared a report for the

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City as part of an application for the landfill to be exempted from state law reporting

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requirements. See Parker Decl. Ex. 2, ECF No. 79-2. The water board exempted the landfill after

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it found the City had not knowingly accepted any hazardous waste, but it noted elevated levels of

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chemicals in the groundwater near the landfill, so it ordered the City to monitor the groundwater.

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See Crooks Letter (Jan. 30, 1990), Req. J. Not. Ex. 2, ECF No. 79-4. The next year, the water

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board rescinded its 1968 order and issued a new set of requirements. See generally 1991 WDR.

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These requirements imposed a detailed series of prohibitions and set specific dates for

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compliance. Id. at 3–8. It directed the City to monitor chemicals in the groundwater and propose

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a plan to curb discharges from the landfill. Id. at 4, 7.

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Unfortunately, almost ten years after the water board revised its previous discharge

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requirements for the landfill, tests were still detecting unacceptable levels of chemicals in the

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surrounding groundwater. Busby Letter (Feb. 22, 2000), Req. J. Not. Ex. 5, ECF No. 79-4. The

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water board directed the City to submit an engineering study and to propose a plan to correct the

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problem. Id. Eventually the water board issued a third set of discharge requirements to the City.

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See generally 2003 WDR. It appeared that buried waste within the landfill was close to the

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historic groundwater level, contrary to state regulations. Id. at 4. The water board ordered the
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City to maintain the required five feet of vertical distance between the historic groundwater level

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and the landfill waste, continue monitoring discharges and satisfy other requirements. Id. at 4,

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22. The City attempted to comply, but it hit a roadblock: a landowner to the south refused to

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allow the City’s employees and contractors to enter its land to drill and check monitoring wells,

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as the water board had ordered. See generally Orrell Decl. Exs. 82–90, ECF No. 90-1. The City

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eventually resorted to the courts and eminent domain. See Palmer Letter (Aug. 6, 2010), Orrell

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Decl. Ex. 92, ECF No. 90-1.

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By late 2012, the City had finally drilled the last required monitoring well. Leftwich

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Letter (Nov. 13, 2012), Orrell Decl. Ex. 94, ECF No. 90-1. But the next year, it remained out of

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compliance with the water board’s orders. There were still dangerous chemicals in the water, and

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the City had not submitted the required engineering study and remedial plans. See Cleanup &

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Abatement Order at 5, Req. J. Not. Ex. 7 at 5, ECF No. 79-4. As a result, in 2014, the water

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board gave the City six specific directives, each with a deadline. See id. at 9–10. If the City did

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not comply, the case could be referred to the California Attorney General, and the City could face

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fines of up to $10,000 per violation per day. Id. at 11.

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The City then submitted a plan. See Del Frate Letter (June 11, 2014), Orrell Decl. Ex. 96,

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ECF No. 90-1. It would dig cutoff trenches around the landfill to depress nearby groundwater

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levels, collect contaminated groundwater and send that water to a treatment plant. Id. The water

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board approved this plan. Id. The City contracted with a construction company to dig the cutoff

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trench and install the dewatering system. See Lincoln City Council Mins. at 6 (June 9, 2015),

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Orrell Decl. Ex. 100, ECF No. 90-1; Agreement, Orrell Decl. Ex. 101, ECF No. 91-1; Lincoln

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City Council Resolution No. 2016-51 (Mar. 22, 2016), Orrell Decl. Ex. 104, ECF No. 91-1. The

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construction company finished the job in early 2016. See Notice of Completion (Feb. 23, 2016),

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Orrell Decl. Ex. 105, ECF No. 91-1. The City also approved a monitoring contract for the wells

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around the landfill. See Lincoln City Council Resolution No. 2016-174 (Sept. 13, 2016), Orrell

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Dec. Ex. 106, ECF No. 91-1. In their current filings, the parties do not address whether more

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work will be necessary.

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The City filed this action against the County in 2018. See generally Compl., ECF No. 1.

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It claimed the County should bear some responsibility for responding to the problems at the

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landfill because its residents were responsible for a good portion of the waste that had been buried

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within the landfill. See id. ¶ 12. The City pursued claims based on nuisance, trespass, equitable

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indemnity and contribution, and the federal Comprehensive Environmental Response,

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Compensation, and Liability Act of 1980 (CERCLA). See id. ¶¶ 15–54.

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While the case was still in discovery, the County sought judgment on the pleadings. The

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court granted that motion in part. See generally Prev. Order (Sept. 15, 2022), ECF No. 62. It

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dismissed one of the City’s federal claims without leave to amend. Id. at 9. The court also

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dismissed the City’s state law claims for equitable indemnity and equitable contribution, but with

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leave to amend. Id. The City amended its complaint, and the County amended its answer and

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counterclaims. See generally First Am. Compl., ECF No. 66; Am. Answer & Countercl., ECF

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No. 67.

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Discovery has now closed, and four motions are pending, as noted. The City moves to

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strike the County’s allegation that it is immune to the City’s claims. The City argues the County

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added that allegation too late and without permission. The County opposes that motion, but it

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also seeks leave to amend its answer to assert the disputed immunity as a backstop. The County

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also seeks summary judgment in its favor on all the City’s claims. Finally, in the event the

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County does not obtain summary judgment in full, it seeks partial summary judgment of its own

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counterclaim, which seeks contribution by the City under CERCLA. All four motions are fully

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briefed and were submitted after a hearing over videoconference on March 30, 2023.2 Jeffrey

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Orrell and Charles Grosenick appeared for the City. Jennifer Hartman King appeared for the

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County, with Gregory Warner observing. While the City’s counsel suggested at the beginning of

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See generally Mot. Strike, ECF No. 68; Mem. Strike, ECF No. 68-3; Opp’n Strike, ECF
No. 70; Reply Strike, ECF No. 82; Mot. Am., ECF No. 73; Mem. Am., ECF No. 73-1; Opp’n
Am., ECF No. 76; Reply Am., ECF No. 82; Mot. Summ. J., ECF No. 79; Mem. Summ. J., ECF
No. 79-1; Opp’n Summ. J., ECF No. 85; Reply Summ. J., ECF No. 98; Surreply Summ. J., ECF
No. 99; Mot. Summ. J. (§ 113), ECF No. 78; Mem. Summ. J. (§ 113), ECF No. 78-1; Opp’n
Summ. J. (§ 113), ECF No. 92; Reply Summ. J. (§ 113), ECF No. 97; Hr’g Mins., ECF No. 102.
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the hearing the parties may be on the verge of settlement, no notice of settlement is on the docket

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so the court proceeds to issue this order.

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This is a complex case built on a long historical record and frequently confusing statutory

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provisions. As the Ninth Circuit has said, “neither a logician nor a grammarian will find comfort

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in the world of CERCLA.” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 883 (9th

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Cir. 2001). Recognizing that complexity, the court granted the County’s emergency, last-minute

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request to file a twenty-page reply brief in support of its motion for summary judgment, twice as

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long as the ordinary limit. See Order (Feb. 28, 2023), ECF No. 95; Standing Orders at 4, ECF

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No. 3. The County appears, however, to have concluded that twenty pages were not enough.

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Although its reply brief ends just after the twentieth page, that brief includes many long and

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argumentative footnotes in much smaller, single-spaced text. The City took similar liberties in its

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surreply. Relegating arguments to the margins of a brief in this way is unfair to one’s opposition,

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particularly after obtaining twice the space on an emergency basis. The court has disregarded the

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footnotes in the reply and surreply for these reasons.

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III.

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THE COUNTY’S IMMUNITY DEFENSES
The court begins with the disputed immunity defenses. The County’s original answer

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alleged the City’s action was barred in part because the City had not presented its damages claim

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to the County before filing the lawsuit. See Cty. Answer at 8, ECF No. 10 (citing Cal. Gov’t

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Code §§ 905, 945.5). The County’s amended answer added many other immunities under many

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other sections of the California government code. See Cty. Am. Answer at 8, ECF No. 67. For

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example, the County cited Government Code section 815. Under that section, public entities are

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not liable for injuries except as authorized by statute. Cal. Gov’t Code § 815(a). The County also

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cited section 818.6, which provides a public entity “is not liable for injury caused by its failure to

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make an inspection, or by reason of making an inadequate or improper inspection, of any

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property.” The City argues it was too late for the County to assert these many new affirmative

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defenses in this case.

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Several rules are at play here. The first is Rule 16. Under Rule 16, a district court must
issue a scheduling order, and that order “may be modified only for good cause and with the
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judge’s consent.” Fed. R. Civ. P. 16(b)(1), (4). The court issued a scheduling order for this case

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in June 2018. ECF No. 16. It permitted no further amendments to the pleadings “without leave

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of court, good cause having been shown.” Id. at 2. The “pleadings” include the answer to a

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complaint, Fed. R. Civ. P. 7(a)(2), so the court’s scheduling order limited the County’s ability to

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amend its answer. And despite several amendments to that scheduling order, the general deadline

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for amendments to the pleadings was unchanged. See, e.g., Stip. & Order, ECF No. 83

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(discussing changes to scheduling order). For these reasons, the County could amend its answer

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only after obtaining the court’s leave and showing good cause.

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The “good cause” requirement focuses primarily on the party’s diligence and its reasons

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for not acting sooner. In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th

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Cir. 2013) (citing Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 609 (9th Cir. 1992)),

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aff’d on unrelated question sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). The

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County did not act diligently. It attempted to add its new defenses more than four years after this

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case began, and it is unclear why it could not or did not assert those immunities at the outset.

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The County cites a 2019 decision by the California Supreme Court to explain its delay.

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See Mem. Am. at 7 (citing Quigley v. Garden Valley Fire Prot. Dist., 7 Cal. 5th 798 (2019)). In

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Quigley, the state supreme court clarified that Government Code immunities are affirmative

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defenses that must be pleaded and proved. 7 Cal. 5th at 802–03. But Quigley was decided in

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2019, and the County did not file its amended answer until late 2022. As confirmed at hearing, it

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did not even raise the possibility of a new immunity defense until late 2021. See Lungren Decl.

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¶ 4 & Ex. B at 2, ECF No. 73-2 (attaching letter dated December 2021). Because the County has

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not acted diligently, it has not shown good cause to modify the scheduling order, so that

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scheduling order remains in effect, and under Rule 16 the County may not proceed on the

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immunity defenses it asserted in its answer without the court’s approval.

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Under the second rule at play in the City’s motion, however, the County might be able to

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assert its immunity defenses at the summary judgment stage even if they are not allowed in its

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answer. The Ninth Circuit long ago “liberalized the requirement that affirmative defenses be

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raised in a defendant’s initial pleading.” Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984)
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(citing Healy Tibbitts Const. Co. v. Ins. Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982) (per

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curiam)). A defendant may assert an affirmative defense at the summary judgment stage—even if

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that defense was not in its answer—unless the plaintiff would suffer prejudice as a result of the

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delay. Garcia v. Salvation Army, 918 F.3d 997, 1008–09 (9th Cir. 2019). It is not enough for the

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plaintiff to say the new defense might be decisive; after all, the new defense might have ended the

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case right away if the defendant had included it in its answer. See Owens v. Kaiser Found. Health

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Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). The plaintiff must “point to a ‘tangible way in

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which it was prejudiced by the delay.’” Garcia, 918 F.3d at 1008 (quoting Ledo Fin. Corp. v.

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Summers, 122 F.3d 825, 827 (9th Cir. 1997)).

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The City argues persuasively that the late addition of new immunity defenses would

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prevent it from conducting discovery into those defenses, unless the court reopened discovery. It

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cites the trespass claim as an example. See Mem. Strike at 7 & n.4. For that claim, if the County

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is permitted to proceed on its new immunity defenses, it could argue County employees are “not

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liable for an injury arising out of [their] entry upon any property where such entry is expressly or

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impliedly authorized by law.” Cal. Gov’t Code § 821.8. If the City believed it could defeat that

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assertion of immunity by arguing the employees exceeded their authority or acted negligently, see

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id., it would likely lack evidence to cite, see Mem. Strike at 7 & n.4. Even if discovery were

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reopened to permit a limited investigation, the parties’ experts would likely need to check

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whether their opinions remained viable in light of new factual information. More time for

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discovery would also probably result in more pretrial motion practice, as is evident from the

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County’s responses to the City’s last-minute attempts to obtain information from the County

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about its immunity defenses. The County responded mostly with objections, refusing to produce

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documents, and the discovery deadline then passed. See Grosenick Decl. ¶¶ 5–6, Exs. D–E, ECF

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Nos. 72-1, 72-5, 72-6. Allowing new immunity defenses in the case at this late stage would cause

25

delays or prejudice or both.

26

Finally, under a third relevant rule, which the County emphasized at hearing, some district

27

courts have allowed defendants to amend their answers without first seeking permission after a

28

plaintiff amends its complaint. See, e.g., Coppola v. Smith, No. 11-1257, 2015 WL 2127965, at
11

1

*2–3 (E.D. Cal. May 6, 2015) (surveying cases). The most permissive of these decisions allow

2

defendants to assert whatever defenses and counterclaims they like after a complaint is amended,

3

even with a trial close at hand. See, e.g., Digital Priv., Inc. v. RSA Sec., Inc., 199 F. Supp. 2d 457,

4

459 n.2 (E.D. Va. 2002), appeal dismissed, 56 F. App’x 497 (Fed. Cir. 2003). “The philosophy

5

underlying this approach appears to be that plaintiffs amend their complaint at their peril, opening

6

themselves up to any and all counterclaims the defendants choose to assert.” Coppola, 2015 WL

7

2127965, at *2 (quoting S. New England Tel. Co. v. Global NAPS, Inc., 2007 U.S. Dist. LEXIS

8

10421, at *6 (D. Conn. Feb. 14, 2007)).

9

Many district courts have elected not to take such a permissive tack. “If every

10

amendment, no matter how minor or substantive, allowed defendants to assert counterclaims or

11

defenses as of right, claims that would otherwise be barred or precluded could be revived without

12

cause. This would deprive the Court of its ability to effectively manage the litigation.” E.E.O.C.

13

v. Morgan Stanley & Co., 211 F.R.D. 225, 227 (S.D.N.Y. 2002). District courts have more

14

commonly restricted defendants to amend their answers only when the plaintiff has changed “the

15

theory or scope of the case,” and even then, courts have limited defendants to amendments that

16

“reflect the breadth of the changes in the amended complaint.” Va. Innovation Scis., Inc. v.

17

Samsung Elecs. Co., 11 F. Supp. 3d 622, 632 (E.D. Va. 2014) (quoting Elite Ent., Inc. v. Khela

18

Bros. Ent., 227 F.R.D. 444, 446 (E.D. Va. 2005)).

19

The Ninth Circuit does not appear to have addressed the issue. See Coppola, 2014

20

WL2127965, at *3. Having reviewed the available persuasive authority, the court adopts the

21

more “moderate” view, which is also the majority view: a defendant may amend its answer

22

without first seeking leave of court in response to an amended complaint, provided the amended

23

complaint changes the theory or scope of the case, and in this scenario the defendant’s

24

amendments may address only that changed theory or scope.

25

Here, the City’s amended complaint did not change the theory or scope of its case. The

26

court permitted a narrow amendment only, and the City narrowed its case in response. It left out

27

one of the dismissed claims. The County’s new immunity defenses go beyond those changes and

28

the amended claim. For these reasons, the court grants the City’s motion to strike the County’s
12

1

second affirmative defense for government immunity and denies the County’s motion for leave to

2

amend its answer.

3

IV.

SUMMARY JUDGMENT

4

A.

Legal Standard

5

Although the parties agree about the basic legal standard for summary judgment motions,

6

they disagree about what they must cite and prove. For that reason, it will be helpful to begin

7

with a more detailed review of the burdens the City and County must carry at the summary

8

judgment stage.

9

Summary judgment is appropriate if “there is no genuine dispute as to any material fact

10

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

11

“genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

12

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome

13

of the suit under the governing law.” Id. The parties must cite “particular parts of materials in

14

the record.” Fed. R. Civ. P. 56(c)(1). The court then views the record in the light most favorable

15

to the nonmoving party and draws reasonable inferences in that party’s favor. Matsushita,

16

475 U.S. at 587–88; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

17

The party moving for summary judgment must first carry its initial burden of production.

18

See Celotex, 477 U.S. at 325; Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099,

19

1102 (9th Cir. 2000). If the moving party would not have the burden to prove the disputed claim

20

or defense at trial, then it may carry its initial burden of production at summary judgment in one

21

of two ways: “either produce evidence negating an essential element of the nonmoving party’s

22

claim or defense or show that the nonmoving party does not have enough evidence of an essential

23

element to carry its ultimate burden of persuasion at trial.” Nissan Fire, 210 F.3d at 1102. Then,

24

to carry its burden of persuasion on the motion, the moving party must “persuade the court that

25

there is no genuine issue of material fact.” Id. If, by contrast, the moving party would have the

26

burden to prove the disputed claim or defense at trial, then it must cite portions of the record to

27

show “no reasonable jury” could find in favor of the nonmoving party. Snell v. Bell Helicopter

28

Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997). The moving party must “establish beyond
13

1

controversy every essential element” of that claim or defense. S. Cal. Gas Co. v. City of Santa

2

Ana, 336 F.3d 885, 888 (9th Cir. 2003) (per curiam), adopting 202 F. Supp. 2d 1129 (C.D. Cal.

3

2002).

4

“If a moving party fails to carry its initial burden of production, the nonmoving party has

5

no obligation to produce anything, even if the nonmoving party would have the ultimate burden

6

of persuasion at trial.” Nissan Fire, 210 F.3d at 1102–03. If, however, the moving party does

7

carry its initial burden of production, the nonmoving party must produce evidence to support its

8

claims or defenses and “establish that there is a genuine issue of material fact.” Matsushita,

9

475 U.S. at 585. “If the nonmoving party fails to produce enough evidence to create a genuine

10

issue of material fact, the moving party wins the motion for summary judgment. But if the

11

nonmoving party produces enough evidence to create a genuine issue of material fact, the

12

nonmoving party defeats the motion.” Nissan Fire, 210 F.3d at 1103 (citing Celotex, 477 U.S. at

13

322).

14

The City argues the County has not carried its initial burden of production. For example,

15

it repeatedly faults the County for not reproducing the language of specific interrogatory requests

16

or citing specific discovery responses. See, e.g., Opp’n Summ. J. at 3–4, 6–7. These arguments

17

rely on an incorrectly narrow conception of the Supreme Court’s and Ninth Circuit’s decisions.

18

The Supreme Court has held unambiguously that a moving party may prevail at summary

19

judgment by showing the nonmoving party could not carry its ultimate burden at trial. See

20

Celotex, 477 U.S. at 322. To be sure, a moving party that would not have the ultimate burden of

21

persuasion at trial cannot “use a summary judgment motion as a substitute for discovery.” Nissan

22

Fire, 210 F.3d at 1105. “[I]t is never enough simply to state that the non-moving party cannot

23

meet its burden at trial.” Id. (quoting Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

24

1991)). But the Supreme Court and Ninth Circuit have demanded neither granular recitations of

25

discovery responses nor affirmative proof that discovery was adequate.

26

In Celotex, for example, the plaintiff claimed her husband had died from exposure to the

27

defendant’s asbestos. See 477 U.S. at 319–20. The manufacturer moved for summary judgment

28

after discovery, citing the plaintiff’s failure to respond to an interrogatory with the names of any
14

1

witnesses who could testify about her husband’s exposure. Id. The district court granted the

2

motion because “there was no showing that the plaintiff was exposed.” Id. at 320. The court of

3

appeals reversed because the defendant had not relied on “any evidence, in the form of affidavits

4

or otherwise.” Id. at 321 (emphasis omitted). The Supreme Court rejected that reasoning: “the

5

burden on the moving party may be discharged,” it wrote, “by ‘showing’—that is, pointing out to

6

the district court—that there is an absence of evidence to support the nonmoving party’s case.”

7

Id. at 325. The Court remanded the case for the lower courts to decide whether there was any

8

genuine dispute about asbestos exposure. See id. at 327.

9

In this case, because the parties have had an adequate opportunity for discovery, when the

10

City will ultimately be charged with the burden of proof at trial, the County can simply “point

11

out” the absence of any evidence, such as the missing witnesses, documents or expert opinions,

12

that would be necessary to prove the City’s claim. The court begins with the City’s claim under

13

CERCLA section 107.

14

B.

The City’s CERCLA Section 107 Claim

15

“CERCLA . . . was enacted in 1980 ‘to provide for liability, compensation, cleanup, and

16

emergency response for hazardous substances released into the environment and the cleanup of

17

inactive hazardous waste disposal sites.’” Carson Harbor Vill. v. County of Los Angeles,

18

433 F.3d 1260, 1265 (9th Cir. 2006) (quoting Pub. L. No. 96-510, 94 Stat. 2767 (1980)). It

19

creates “a comprehensive scheme for the cleanup of hazardous waste sites,” and it “imposes

20

liability for cleanup costs on the parties responsible for the release or potential release of

21

hazardous substances into the environment.” Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d

22

1066, 1072 (9th Cir. 2006). Section 107(a) of CERCLA, now found in 42 U.S.C. § 9607(a),

23

allows an entity that has incurred cleanup costs to recover those costs from others who

24

contributed to the release of hazardous wastes. The elements of a claim under section 107(a) are

25

well known and, for the most part, are not disputed in this case. A plaintiff must show:

26

(1)

The waste disposal site is a “facility” under the statutory definition;

27

(2)

There has been a “release” or “threatened release” of a “hazardous substance”

28

from that site;
15

1

(3)

2
3

That release or threatened release has caused the plaintiff to incur certain costs;
and

(4)

The defendant falls within a category of people defined in the statute, i.e., current

4

owners and operators, former owners and operators, “arrangers,” and

5

“transporters.”

6

See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989). The County does

7

not dispute the City could prove the landfill is a “facility” and a “hazardous substance” was

8

“released” from the landfill. The County rather focuses on the third and fourth elements. It

9

contends the City cannot show its response costs are actually attributable to the release of any

10

“hazardous substances” from the landfill; the County also argues it is not a current or former

11

owner, operator, arranger or transporter.

12

The County’s causation arguments can be rejected without difficulty, but a few additional

13

details about the chemicals found near the landfill are necessary to explain why. Some of these

14

chemicals are known generally as “chlorides” and “dissolved solids.” See, e.g., Crooks Letter

15

(Jan. 30, 1990), Req. J. Not. Ex. 2, ECF No. 79-4. A “chloride” is not necessarily a dangerous

16

thing, depending on the dose. Table salt is sodium chloride. In the context of this case, the

17

danger comes from other substances that can dissolve in water, like heavy metals and industrial

18

solvents. See Savage Rep. at 9–10. One measurement of the solids dissolved in a specific sample

19

of water is the “total dissolved solids” or “TDS,” that is, the solids that remain in a sample after it

20

is passed through a very fine filter. See id. at 9. California regulates these solids in water around

21

landfills. See, e.g., Crooks Letter (Jan. 30, 1990); Cal. Water Code § 13273.1. A landfill owner

22

like the City need not remove dissolved solids completely, but it must reduce them to acceptable

23

background levels. See, e.g., 2003 WDR at 14.

24

“Volatile organic compounds” or “VOCs” are another category of substances that have

25

been detected in and around the landfill. See, e.g., Cleanup & Abatement Order at 1, 3. Many

26

VOCs are produced in the manufacturing of paints, pharmaceuticals and refrigerants, and they are

27

typically used as industrial solvents. U.S. E.P.A., “What Are Volatile Organic Compounds

16

1

(VOCs)” (Mar. 15, 2023).3 According to the U.S. Environmental Protection Agency, human

2

exposure to some VOCs can have long-term negative health consequences. Id. The water board

3

has determined no background level of VOCs is acceptable for the groundwater near the landfill;

4

the only acceptable level is zero or “non-detect.” See 2003 WDR at 27–28.

5

The parties agree the chlorides and dissolved solids found in the groundwater near the old

6

landfill here are not “hazardous substances” for purposes of the City’s CERCLA claims. The

7

parties also agree VOCs are “hazardous substances” under CERCLA. See Mem. Summ. J. at 6

8

n.1; Opp’n Summ. J. at 2 n.3. As a result, if the City’s response costs are solely attributable to

9

chlorides and dissolved solids—and not to VOCs—then it could not recover its response costs

10

from the County. The County argues that is the case.

11

VOCs were first detected in the groundwater near the landfill in 1989. See 2003 WDR at

12

4; Cleanup & Abatement Order at 1. Despite that early detection, the water board did not require

13

the City to monitor the groundwater for VOCs or to undertake any efforts to prevent the landfill

14

from releasing VOCs. See 2003 WDR at 4. In later years, however, VOCs were detected near

15

the landfill again. See, e.g., Cleanup & Abatement Order at 3. The water board then ordered the

16

City to remove VOCs from the groundwater. Under the water board’s orders, “[a] detection of a

17

VOC is a violation of the WDRs.” Id. For that reason, at least some of the City’s response costs

18

could potentially be tied to the release of VOCs from the landfill.

19

This genuine dispute—whether the City’s response costs are tied to the release of VOCs—

20

precludes the County from obtaining summary judgment based on causation. As a result, the

21

County is not entitled to summary judgment on the City’s section 107(a) claim unless the County

22

is not within any of the four categories of persons or entities who can be liable under that section.

23

Two of those categories might encompass the County.

24

First, the City argues the County is liable as an “arranger.” Arrangers are the third

25

category of defendants who can be liable for response costs under section 107(a). CERCLA

26

defines arranger liability in section 107(a)(3): an entity is liable if it “by contract, agreement, or
3

https://www.epa.gov/indoor-air-quality-iaq/what-are-volatile-organic-compounds-vocs
(last visited Apr. 3, 2023).
17

1

otherwise arranged for disposal or treatment, or arranged with a transporter for transport for

2

disposal or treatment, of hazardous substances owned or possessed by such person, by any other

3

party or entity, at any facility or incineration vessel owned or operated by another party or entity

4

and containing such hazardous substances.” 42 U.S.C. § 9607(a)(3). The Ninth Circuit has held

5

persons “may be liable under § 9607(a)(3) if they arrange for disposal of their own waste or

6

someone else’s waste.” Pakootas, 452 F.3d at 1082. For that reason, the County’s argument—

7

that because it did not own the garbage deposited in the landfill, it is not an “arranger”—is

8

unavailing. See, e.g., Mem. Summ. J. at 9. The County can be liable for arranging to dispose of

9

waste it did not own.

10

The County’s next argument rests on the meaning of the word “arrange” itself. CERCLA

11

does not define that word, and section 107(a)(3) has often vexed federal courts. One Ninth

12

Circuit panel even said it “does not make literal or grammatical sense as written.” Pakootas,

13

452 F.3d at 1080. As relevant in this case, there are two possible interpretations of section

14

107(a)(3). First, it could mean an “arranger” must intend to dispose of a substance it knows or

15

has reason to believe is “hazardous.” Second, it could mean an “arranger” must intend to dispose

16

of a substance, and that substance must be “hazardous.” The County urges this court to adopt the

17

first interpretation. As explained below, however, CERCLA’s statutory text, structure, remedial

18

purpose and retroactive nature lead the court to adopt the second interpretation. An alleged

19

“arranger” need not have any specific state of mind about whether a particular substance is

20

hazardous or dangerous to be liable under section 107(a)(3).

21

The County, in its briefing and at hearing, relies heavily on the Supreme Court’s opinion

22

in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009). In

23

Burlington Northern, the Supreme Court described a spectrum of potential defendants who might

24

face claims under section 107(a)(3). At one end, an entity would certainly be liable as an arranger

25

if it entered some transaction “for the sole purpose of discarding a used and no longer useful

26

hazardous substance.” Id. at 609–10. At the other end, “an entity could not be held liable as an

27

arranger merely for selling a new and useful product if the purchaser of that product later, and

28

unbeknownst to the seller, disposed of the product in a way that led to contamination.” Id. at 610
18

1

(emphasis added). For cases between these two extremes, the Supreme Court required some

2

intentional act before a party can be liable: “an entity may qualify as an arranger under

3

§ 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.” Id. at 611.

4

The Supreme Court’s decision in Burlington Northern might at first glance appear to

5

support the County’s proposed interpretation. The Court held that Congress required “action

6

directed to a specific purpose,” i.e., taking “intentional steps to dispose of a hazardous substance.”

7

556 U.S. at 611 (emphasis added). It could be inferred from this sentence that a defendant must

8

have intended specifically to dispose of a hazardous substance, not just any substance. If not,

9

then why did the Court use the adjective “hazardous”? The Court could instead have required

10

“intentional steps to dispose of a substance.” See, e.g., Town of Islip v. Datre, 245 F. Supp. 3d

11

397, 423 (E.D.N.Y. 2017) (drawing this inference). But this reasoning places too much emphasis

12

on one word in one sentence. The Supreme Court said nothing else about what a party must

13

know of a particular substance. In fact, the Court sometimes omitted the word “hazardous,”

14

suggesting the word itself played no crucial role. See, e.g., 556 U.S. at 611 (“The Governments

15

do not deny that the statute requires an entity to ‘arrang[e] for’ disposal . . . .”). When the Court

16

did mention knowledge, it referred only to knowledge about what would happen with the

17

substance, not whether the substance was hazardous. See, e.g., id. at 612.

18

There also is an obvious alternative explanation for why the word “hazardous” appears in

19

the Supreme Court’s opinion. In every case against an alleged arranger, the plaintiff must plead

20

and prove the defendant disposed of a “hazardous substance.” See Ascon Props., 866 F.2d at

21

1152. Otherwise there would be no reason to sue. By using the word “hazardous,” the Supreme

22

Court was not announcing any holding, not even implicitly. It was using the words any party uses

23

in an “arranger” case. If the Supreme Court had intended to limit liability to those who knew they

24

were dealing with hazardous substances, it could have written that the alleged arranger must have

25

taken “intentional steps to dispose of a substance it knew to be hazardous.” It did not, and so the

26

word “hazardous” in the opinion holds no great weight.

27
28

The County also cites the Ninth Circuit’s decision in Team Enterprises, LLC v. Western
Investment Real Estate Trust, 647 F.3d 901 (9th Cir. 2011). In Team Enterprises, the plaintiff
19

1

alleged the manufacturer of a wastewater distiller was liable as an “arranger” under CERCLA.

2

See id. at 906–07. The distiller removed most but not all of a hazardous solvent from drycleaning

3

wastewater for reuse. See id. at 906. A drycleaner then washed the remainder down the drain,

4

eventually contaminating the affected property. See id. The Ninth Circuit applied the rule

5

described in Burlington Northern and held the manufacturer was not liable as an arranger. The

6

distiller’s design did not show the manufacturer intended for the solvent to be discarded. Id. at

7

909. The distiller reduced the amount of discarded solvent. Id. The circuit could not infer any

8

intent to dispose from the manufacturer’s failure to warn the drycleaner about risks of wrongful

9

disposal. Id. at 909-10. Nor had the manufacturer exercised any control over the disposal. Id. at

10

910–11. It never touched the solvent. Id. Finally, no evidence showed the manufacturer’s

11

employees had themselves poured the solvent down the drain. Id. at 911.

12

The Circuit’s decision in Team Enterprises did not turn on whether the manufacturer—or

13

anyone, for that matter—knew whether the solvent was dangerous. It did not consider whether an

14

alleged arranger must know anything in particular about the discarded substances. The question

15

was instead whether the manufacturer had intended for the solvent to be disposed. It had not. It

16

had sold a useful distiller and was at most “indifferent” about what happened to the solvent’s

17

eventual fate, id. at 909, so it was not liable. For that reason, Team Enterprises, like Burlington

18

Northern, offers relatively little guidance in this case.

19

The same is true of several other decisions from outside the Ninth Circuit, including many

20

the parties cite. Courts often have assumed the waste or product was hazardous without

21

interrogating the alleged arranger’s beliefs about it. See, e.g., Consolidation Coal Co. v. Georgia

22

Power Co., 781 F.3d 129, 149 (4th Cir. 2015); United States v. Gen. Elec. Co., 670 F.3d 377,

23

383–84 (1st Cir. 2012). At most, knowledge that a substance was hazardous has been a useful

24

indicator of what the defendant intended to do with that substance. See, e.g., Morton Int’l, Inc. v.

25

A.E. Staley Mfg. Co., 343 F.3d 669, 678 (3d Cir. 2003) (holding before Burlington Northern that

26

“proof of a defendant’s knowledge that hazardous waste can or will be released in the course of

27

the process it has arranged for, provides a good reason to hold a defendant responsible because

20

1

such proof demonstrates that the defendant knowingly (if not personally) contributed to the

2

hazardous-waste contamination.”).

3

In sum, the parties have identified no controlling authority that resolves the ambiguity in

4

section 107(a)(3), and the court’s own searches have yielded none. Because the court must be

5

clear on what the statute means to decide the pending motion, it court turns to the language of the

6

statute itself. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108

7

(1980) (“We begin with the familiar canon of statutory construction that the starting point for

8

interpreting a statute is the language of the statute itself.”). As noted above, section 107(a) is

9

notoriously difficult to parse. See Pakootas, 452 F.3d at 1079–80. True to that reputation, the

10

language of section 107(a)(3) specifically offers no great insights. For convenience, here is that

11

text once more:

12
13
14
15
16
17

[A]ny person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport for
disposal or treatment, of hazardous substances owned or possessed
by such person, by any other person or entity, at any facility or
incineration vessel owned or operated by another party or entity and
containing no such hazardous substances . . . shall be liable . . . .

18

42 U.S.C. § 9607(a)(3). This language does not offer a straightforward answer. Like the

19

Supreme Court’s opinion in Burlington Northern, section 107(a)(3) refers to “hazardous

20

substances.” But again, that reference does not end the inquiry. After all, an entity can be liable

21

as an arranger only if it arranged for the disposal of a substance that is hazardous—not if it

22

arranged for the disposal of a substance that later turns out to be healthy or benign. It is not

23

difficult to imagine how Congress could have written section 107(a)(3) if it had intended to

24

require some knowledge of the substance’s hazardous nature. For example, it could have made a

25

person liable “who by contract, agreement, or otherwise arranged for disposal or treatment of

26

substances it knew or should have known were hazardous.” But it did not.

27

Section 107(a), like any other statute, also must “be read as a whole.” United States v. Atl.

28

Rsch. Corp., 551 U.S. 128, 136 (2007) (quoting King v. St. Vincent Hosp., 502 U.S. 215, 221

29

(1991)). If anything, the broader structure of section 107(a) suggests a lack of knowledge about a

30

hazardous substance is no defense. Congress included a specific list of defenses in section
21

1

107(b), and a lack of knowledge is not among them. Congress also clearly was willing to impose

2

liability without regard to whether a defendant knew a substance was hazardous. It made owners

3

and operators liable without mentioning their knowledge, intentions or state of mind. See

4

42 U.S.C. § 9607(a)(1). As the Supreme Court has said, section 107(a) is a “strict liability

5

statute.” Atl. Rsch., 551 U.S. at 136. When section 107 does mention knowledge, it does so only

6

to explain the amount of a person’s liability. A person must be held liable for the “full and total

7

costs of response and damages” if the release “was the result of willful misconduct or willful

8

negligence within the privity or knowledge of such person.” Id. § 9607(c)(2)(A)(i). This

9

provision suggests an entity could be liable, but only in part, if it acted without any knowledge

10

about hazardous substances. Although these provisions weigh against the County’s proposed

11

interpretation, they do not clear up the murky text of section 107(a)(3). As a result, section

12

107(a)(3) is ambiguous when it comes to an alleged arranger’s knowledge or intentions about

13

whether a substance is hazardous.

14

When a statute is ambiguous, its legislative history might help to show what Congress

15

intended. In re Bankr. Est. of MarkAir, Inc., 308 F.3d 1038, 1043 (9th Cir. 2002). Neither party

16

has pointed to any relevant legislative history, and the court is not aware of any. Other federal

17

district courts have considered Congress’s possible purposes. Some have emphasized one

18

purpose of section 107(a)(3) is to prevent “responsible parties from ‘contracting away’ their

19

liability and deterring them from attempting to do so.” Islip, 245 F. Supp. 3d at 423 (quoting

20

Appleton Papers, 2012 WL 270492, at *11). But for the most part, these courts have not

21

supported that conclusion with citations to CERCLA’s legislative history or structure. Their

22

decisions instead often trace back to the very same paragraph in Burlington Northern, where the

23

Supreme Court observed “CERCLA liability would attach under § 9607(a)(3) if an entity were to

24

enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous

25

substance.” See Appleton Papers, 2012 WL 270492, at *11 (citing United States v. Gen. Elec.

26

Co., 670 F.3d 377, 382 (1st Cir. 2012), in turn citing Team Enters., 647 F.3d at 907, in turn citing

27

Burlington Northern, 556 U.S. at 610). As explained above, the Supreme Court was not

28

excluding other types of arrangements or purposes when it wrote that sentence. The Court
22

1

actually was doing the opposite: setting the stage for its explanation why other types of

2

arrangements also could lead to liability under section 107(a)(3).

3

In other words, a person cannot avoid liability by cleverly contracting, but an attempt to

4

contract away liability is not the only way to be liable under section 107(a). The legislative

5

history supports that conclusion. For example, according to a Senate Report, lawmakers intended

6

to prevent people from unloading hazardous waste onto another and then pointing fingers. See,

7

e.g., S. Rep. 96-848, 96th Cong., 2d Sess. at 31 (July 11, 1980). But the same report explains

8

specifically in the same sentence that section 107(a) imposes “strict liability.” Id.

9

Congress also expressed some intentions in a general statement of purpose. CERCLA’s

10

first sentence explains it is meant “to provide for liability, compensation, cleanup, and emergency

11

response for hazardous substances released into the environment and the cleanup of inactive

12

hazardous waste disposal sites.” Pub. L. No. 96–510, 94 Stat. 2767 (1980)). This statement

13

suggests Congress did not intend primarily to punish those who knew the substances they were

14

releasing were hazardous or to deter potential violators, but rather to ensure that after hazardous

15

substances are released, there is liability, compensation, cleanup and an emergency response. The

16

“overwhelming” majority of federal courts thus has refused to excuse defendants from CERCLA

17

liability just because a particular chemical was not officially “hazardous” at the time it was

18

disposed. City of Las Cruces v. Lofts at Alameda, LLC, 591 F. Supp. 3d 1038, 1048 (D.N.M.

19

2022).

20

In short, CERCLA is a remedial statute. It applies retroactively. Id. (collecting authority).

21

And its remedial function would be thwarted, not advanced, by paring down the scope of liability

22

it establishes. In the absence of any other indication of the reasons for Congress’s adoption of

23

section 107(a)(3), the court hesitates to impose specific intent requirements in this case. After all,

24

section 107(a)(3) “must be given ‘a liberal judicial interpretation . . . consistent with CERCLA’s

25

overwhelmingly remedial statutory scheme.” Cadillac Fairview/Cal., Inc. v. United States,

26

41 F.3d 562, 565 n.4 (9th Cir. 1994) (per curiam) (quoting United States v. Aceto Agric. Chem.

27

Corp., 872 F.2d 1373, 1380 (8th Cir. 1989)).

23

1

If the court were to impose a judicially created specific knowledge or intent requirement,

2

the practical consequences would reinforce the conclusion regarding CERCLA’s fundamentally

3

remedial nature. Because CERCLA applies retroactively, it would make little sense to require

4

plaintiffs to prove the arranger intended specifically to dispose of a hazardous substance without

5

exception. See Las Cruces, 591 F. Supp. 3d at 1047. When district courts have looked for

6

allegations and evidence about an arranger’s knowledge, they have not demanded actual

7

knowledge only; they have permitted plaintiffs to show the alleged arranger should have known

8

the substance was hazardous. See, e.g., id.; Appleton Papers, 2012 WL 2704920, at *10. But

9

district judges are rarely experts in chemistry or environmental engineering. As a result, they

10

often have resorted to somewhat crude indicators of what is likely “hazardous” and what is not.

11

For example, does the substance have an “obnoxious odor”? See Las Cruces, 591 F. Supp. 3d at

12

1047. Does it make one feel “high” when breathing its vapors? See id. Is it kept in large,

13

intimidating drums? See Appleton Paper, 2012 WL 2704920, at *11. Does the seller have a

14

history of environmental contamination? See Town of Islip, 245 F. Supp. 3d at 425. Or was its

15

price so low as to suggest foul play? See id. The answers to these questions might serve as a

16

proxy for knowledge and intent. But they also may not. Not all smelly substances are toxic,

17

many substances that alter the mind are not “hazardous,” and not all 55-gallon drums hold toxic

18

solvents. Deciding on an appropriate measure for a person’s state of mind is a question of policy,

19

and the answer requires expertise. Congress is best suited to this task.

20

For these reasons, the court declines to infer that an “arranger” under section 107(a)(3)

21

must have any specific state of mind about whether a particular substance is hazardous or

22

dangerous. By its own terms, section 107(a)(3) imposes liability on those who arrange for the

23

disposal of hazardous substances regardless of whether they knew or should have known those

24

substances were hazardous at the time. The court recognizes this interpretation runs contrary to

25

that espoused by several other federal district courts. See, e.g., Las Cruces, 591 F. Supp. 3d at

26

1047; 68th St. Site Work Grp. v. Airgas, Inc., No. 20-3385, 2021 WL 4255030, at *20–23 (D. Md.

27

Sept. 16, 2021); Town of Islip, 245 F. Supp. 3d at 423–25; Appleton Papers, 2012 WL 2704920,

28

at *11–12. If any court’s interpretation is not what Congress intended, it may revise section
24

1

107(a)(3). This court will not add conditions to the statute when the statute’s text does not

2

provide for them.

3

In conclusion, the City has cited evidence that could potentially show the County arranged

4

for the disposal of hazardous waste at the landfill, so the County is not entitled to summary

5

judgment on arranger liability.

6

In addition to section 107(a)(3) and the County’s liability as an “arranger,” the City

7

invokes section 107(a)(4), the last CERCLA category for responsible persons: transporters. It

8

argues the County “accepted” hazardous waste “for transport” to the landfill “for disposal” under

9

section 107(a)(4). The City has cited evidence that could show the County patrolled its roads and

10

hauled garbage to the landfill in Lincoln. See, e.g., Orrell Decl. Ex. 38 (reporting County Health

11

Department took garbage from alongside county roads to landfill in 1950s); Holdstock Dep. at

12

149, Orrell Decl. Ex. 39, ECF No. 87-1 (testifying dumping trash on roadside “was a very

13

common thing”); Orrell Dec. Ex. 54 at 1, ECF No. 88-1 (record of County Board of Supervisors

14

meeting about accumulation of trash along county roads when landfill was closed). That

15

evidence might suffice at trial to show the County transported at least some waste to the landfill

16

for disposal under CERCLA. Here as well the County has not shown it is entitled to summary

17

judgment in the face of transporter claims under section 107(a)(4). See Adickes, 398 U.S. at 157–

18

59. The court denies the County’s motion for summary judgment on the City’s claim under

19

section 107.

20

C.

The City’s Nuisance Claim

21

Under the California Civil Code, “Anything which is injurious to health . . . or is indecent

22

or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the

23

comfortable enjoyment of life or property . . . is a nuisance.” County of Santa Clara v. Atl.

24

Richfield Co., 137 Cal. App. 4th 292, 305 (2006) (alterations and emphasis in original) (quoting

25

Cal. Civ. Code § 3479). Groundwater contamination is a nuisance per se. See Cal. Water Code

26

§13050(m); Redevelopment Agency of City of Stockton v. BNSF Ry. Co., 643 F.3d 668, 673 (9th

27

Cir. 2011). “[L]iability for nuisance does not hinge on whether the defendant owns, possesses or

28

controls the property, nor on whether he is in a position to abate the nuisance; the critical question
25

1

is whether the defendant created or assisted in the creation of the nuisance.” Atl. Richfield Co.,

2

137 Cal. App. at 306 (quoting City of Modesto Redevelopment Agency v. Superior Court,

3

119 Cal. App. 4th 28, 38 (2004)) (emphasis and alteration in Santa Clara). The question is not

4

whether the defendant’s actions were reasonable. BNSF, 643 F.3d at 673. “An intentional but

5

not unreasonable act can give rise to nuisance liability if it creates an unreasonable interference.”

6

Id. (emphasis in original).

7

The City has cited evidence that could show the County affirmatively contributed to the

8

creation of groundwater contamination, a nuisance. As summarized above, the record would

9

permit a reasonable jury to conclude the County paid the City an annual fee for many years in

10

exchange for the promise that County residents could leave their waste at the landfill, residents

11

did in fact leave waste at the landfill, and the groundwater has been contaminated by waste in the

12

landfill. The County argues this evidence is irrelevant because the landfill closed in the 1970s,

13

before the water board discovered chlorides, dissolved solids and VOCs in the surrounding

14

groundwater. Mem. at 15. What others knew about the landfill is hardly proof of what the

15

County knew, but even in the 1960s, the water board had discovered that waste had contaminated

16

the nearby groundwater. See 1968 WDRs.

17

The City also has cited evidence that could show the County acted as an authority over the

18

landfill’s safety, both in the 1960s and later on, which could allow a reasonable fact-finder to

19

conclude the County knew or should have known it was contributing to a nuisance. For example,

20

the County’s health officer served as the City’s health officer as early as the 1940s. Placer Cty.

21

Resp. to Req. for Admission Nos. 3–4, Orrell Decl. Ex. 9, ECF No. 86-1. The County permitted

22

the City to burn waste in open trenches at the landfill before 1970. Id. No. 54. The County’s

23

health officer advised the City about how to operate the dump in response to complaints. See

24

Lincoln City Council Meeting Minutes (Oct. 24, 1961), Orrell Decl. Ex. 63, ECF No. 89-1. The

25

County’s health department concurred with the 1968 WDR. Bourgault Dep. at 173–75, Orrell

26

Decl. Ex. 47, ECF No. 88-1; Marino Letter (Oct. 21, 1968), Orrell Decl. Ex. 66, ECF No. 89-1.

27

And later, the County helped ensure the landfill was properly closed. See Farinha Dep. at 37,

28

154, Orrell Decl. Ex. 51, ECF No. 88-1. This evidence could support a nuisance claim at trial.
26

1

See, e.g., Selma Pressure Treating Co. v. Osmose Wood Preserving Co., 221 Cal. App. 3d 1601,

2

1620 (1990) (finding an agreement to dispose of waste supported nuisance claim in similar

3

circumstances).

4

The County also argues the City’s actions, not the County’s actions, caused the nuisance,

5

citing a decision by another California district court. Mem. Summ. J. at 15–16 (citing W. Coast

6

Home Builders, Inc. v. Aventis Cropscience USA Inc., No. 04-2225, 2009 WL 2612380 (N.D.

7

Cal. Aug. 21, 2009)). In West Coast Home Builders, the plaintiffs alleged one group of

8

defendants had created a nuisance by sending trash to a landfill. See 2009 WL 2612380, at *8. It

9

was undisputed, however, those defendants’ “only role with respect to the Landfill was having

10

their waste taken there for the purposes of its disposal.” Id. at *9. The City does not rely on such

11

thin evidence of the County’s actions, as explained in detail above.

12

Lastly, the County argues the City consented to the disposal of wastes at the landfill.

13

Mem. at 16–17. “Although consent may be a defense against a party that gave consent in a

14

private nuisance action, consent is not a defense to public nuisance.” Tri-Dam v. Yick,

15

No. 11-01301, 2016 WL 4061348, at *3 (E.D. Cal. July 28, 2016) (citing Beck Dev. Co. v. S. Pac.

16

Transp. Co., 44 Cal. App. 4th 1160, 1215 (1996) and Mangini v. Aerojet-Gen. Corp., 230 Cal.

17

App. 3d 1125, 1139 (1991)). As for the City’s private nuisance claim, because consent is a

18

defense, the County would have the ultimate burden at trial to prove the City gave consent. See,

19

e.g., Beck, 44 Cal. App. 4th at 1214–16 (reviewing relevant law). To prevail on summary

20

judgment, then, the County must demonstrate the City’s consent beyond controversy. It has not

21

done so. It is unclear, for example, whether the City consented to the disposal of waste that

22

leaked hazardous substances. The City told regulators in the 1960s it did not believe it was

23

accepting waste containing “liquid or soluble chemicals of a toxic nature” at the landfill.

24

Obernholtzer Letter (Nov. 14, 1968), Parker Decl. Ex. 4, ECF No. 79-2. Yet as the evidence

25

could now show, some of the waste deposited in the landfill contained toxic substances, and a

26

portion of that waste could be attributed to the County’s residents at trial. The court denies the

27

motion for summary judgment of this claim.

27

1

D.

The City’s Trespass Claim

2

A defendant may be liable for trespass if it unlawfully interfered with the plaintiff’s

3

possession of property. Mangini, 230 Cal. App. 3d at 1141. “Peaceable entry on land is not

4

actionable.” Id. (quoting Girard v. Ball, 125 Cal. App. 3d 722, 788 (1981)). But a trespass may

5

occur if the defendant entered with limited consent and exceeded those limits. Id. The plaintiff

6

also can revoke its consent for some “structure, chattel, or other thing” that remains on its

7

property, and if the defendant “fails to remove it after the consent has been effectively

8

terminated,” then it also may have trespassed. Id. (quoting Restatement (Second) Torts § 160)

9

omitted). In Mangini, for example, the plaintiffs alleged a person had wrongfully disposed of

10

hazardous substances on their property during the term of a lease agreement, and they alleged the

11

defendants had not cleaned up that waste as the lease required. Id. These allegations supported

12

their theory of an unlawful interference with their property. Id.

13

This court need not decide whether the City consented to the disposal of specific

14

hazardous substances at the landfill. Even if it did, the City also will argue at trial that it revoked

15

that consent. See Opp’n Summ. J. at 13. And it is possible that argument might win out. To be

16

sure, as the County points out, a plaintiff may not revoke its consent when it has effectively taken

17

ownership of the allegedly trespassing object. For example, someone who paints his home with

18

lead paint cannot fault the paint manufacturer for trespassing if he later discovers the dangers of

19

lead. See Atl. Richfield Co., 137 Cal. App. 4th at 315. Products liability may be a superior theory

20

of fault in such cases. See id. (citing Fibreboard Corp. v. Hartford Accident & Indemnity Co.,

21

16 Cal. App. 4th 492, 512 (1993)). But the County has not shown this case falls within that

22

category as a matter of law. The City did not buy garbage and put it to use. The County paid the

23

City, and the City burned and buried the waste. The court denies the motion for summary

24

judgment on this claim as well.

25

E.

The City’s Equitable Contribution Claim

26

Under the California Civil Code, “a party to a joint, or joint and several obligation, who

27

satisfies more than his share of the claim against all, may require a proportionate contribution

28

from all the parties joined with him.” Cal. Civ. Code § 1432. The City claims the County must
28

1

contribute to the costs of its response to the water board’s orders. See First Am. Compl. ¶¶ 31–

2

33, 41; Opp’n Summ. J. at 13.

3

In response, the County argues the limitations period for such a claim has run. See Mem.

4

Summ. J. at 19. California law provides actions based on “a liability created by statute, other than

5

a penalty or forfeiture,” must be brought within three years of the day they accrue. Cal. Civ.

6

Proc. Code § 338(a). A claim for contribution under section 1432 accrues when the plaintiff pays

7

more than its proportional share, “but not until then.” Jackson v. Lacy, 37 Cal. App. 2d 551, 559

8

(1940). This action began on January 12, 2018, ECF No. 1, meaning the City may not seek

9

contribution for payments made before January 12, 2015. The County has not shown all the costs

10

of the City’s response were paid before that date, so the County is not entitled to summary

11

judgment based on the relevant limitations period.

12

The County also argues it is not jointly or severally liable with the City under section

13

1432. Under the California Water Code, any person who has “caused or permitted . . . any waste

14

to be discharged or deposited . . . into the water of the state and creates . . . a condition of

15

pollution or nuisance, shall, upon order of the regional board, clean up the waste or abate the

16

effects of the waste.” Cal. Water Code § 13304(a). California courts have interpreted this section

17

as imposing two requirements: (1) the person must have caused or permitted the discharge, and

18

(2) the discharge creates or threatens to create pollution or nuisance. San Diego Gas & Elec. Co.

19

v. San Diego Reg’l Water Quality Control Bd., 36 Cal. App. 5th 427, 431 (2019). The regional

20

board may order one person to undertake this effort even if more than one person could be held

21

responsible under the terms of section 13304(a). Atl. Richfield Co. v. Cal. Reg’l Water Quality

22

Control Bd., 85 Cal. App. 5th 338, 374 (2022). If the board does so order, then that person “can

23

seek contribution from other parties it believes also contributed to the pollution.” Id.

24

Here, the City has cited evidence that could show the County is liable under the terms of

25

Water Code section 13304(a) and Civil Code section 1432. The County paid the City to allow

26

County residents from outside the City to use the landfill, thus relieving the County of any need

27

to operate its own landfill. Long before this lawsuit began, this arrangement led at least one

28

person to describe the landfill as a “cooperative” effort. Atteberry Letter (Jan. 30, 1964), Orrell
29

1

Decl. Ex. 24, ECF No. 87-1. Discharges from the landfill entered the groundwater. A reasonable

2

fact-finder could find that pollution and a nuisance were the result of the cooperative effort. The

3

court denies the motion for summary judgment of this claim.

4

F.

5

Finally, the County asserts a counterclaim for contribution under 42 U.S.C. § 9613(f)(1),

6

and asks the court for a declaration of the City’s liability under 42 U.S.C. § 9613(g)(2). See Am.

7

Answer & Countercl. at 13. The County seeks summary judgment on those counterclaims.

8

The County’s CERCLA Section 113 Claims

Under CERCLA, “[a]ny person may seek contribution from any other person who is liable

9

or potentially liable under section 9607(a) of this title, during or following any civil action . . .

10

under section 9607(a) of this title.” 42 U.S.C. § 9613(f)(1). “In resolving contribution claims,

11

the court may allocate response costs among liable parties using such equitable factors as the

12

court determines are appropriate.” Id. This court held in a related case about the same landfill

13

that the United States was entitled to partial summary judgment on an essentially identical

14

counterclaim against the City. See Order at 20, City of Lincoln v. United States, No. 16-1164

15

(E.D. Cal. Aug. 31, 2020), ECF No. 95. Nothing before it now causes the court to revisit that

16

decision and it orders similarly in this case. The court grants the County’s motion for summary

17

judgment to the same extent it granted the United States’ motion in the related case. If the City

18

prevails in its claims under § 9607(a), the County may seek contribution, and the court will

19

allocate response costs using appropriate equitable factors under § 9613(f)(1).

20

V.

CONCLUSION

21

The court resolves the pending motions as follows. The City’s motion to strike is granted

22

in part as described above. The County’s motion for leave to amend its answer and counterclaim

23

is denied in part as described above. The County’s motion for summary judgment on its

24

counterclaims under 42 U.S.C. §§ 7613(f)(1) and (g)(2) is granted in part as described above.

25

The County’s motion for summary judgment on the City’s claims is denied.

26

A Final Pretrial Conference is set for May 19, 2023 at 10:00 a.m. in Courtroom 3 before

27

Chief District Judge Kimberly J. Mueller. The parties should be prepared to confirm a trial date

28

within 60 to 120 days from the date of the Final Pretrial Conference, and should be available for
30

1

trial accordingly. The parties shall meet and confer and file a joint Pretrial Statement no less than

2

three weeks prior to the Final Pretrial Conference. See E.D. Cal. L.R. 282. The provisions of

3

Local Rule 281 shall apply with respect to the matters to be included in the joint pretrial

4

statement. At least one of the attorneys who will conduct the trial for each of the parties shall

5

attend the Final Pretrial Conference. All motions in limine must be filed in conjunction with the

6

joint pretrial statement. In most cases, motions in limine are addressed and resolved on the

7

morning of the first day of trial. The parties may alert the court at the Final Pretrial Conference

8

and in their final Joint Pretrial Statement that a particular motion or motions should be resolved

9

earlier. At the Final Pretrial Conference, the court will set a briefing and hearing schedule on the

10

motions in limine as necessary. The parties are reminded that a motion in limine is a pretrial

11

procedural device designed to address the admissibility of evidence. The court looks with

12

disfavor upon dispositional motions presented at the Final Pretrial Conference or at Trial in the

13

guise of motions in limine.

14

This order resolves ECF Nos. 68, 73, 78 and 79.

15

IT IS SO ORDERED.

16

DATED: April 3, 2023.

17

31