KFD Enterprises Inc v. City of Eureka

Filing 690

ORDER by Judge Samuel Conti denying 672 Motion for Summary Judgment; granting in part and denying in part 674 Motion for Summary Judgment (sclc1, COURT STAFF) (Filed on 5/9/2014)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 8 9 KFD ENTERPRISES, INC., 10 Plaintiff, 11 v. 12 CITY OF EUREKA, et al. 13 Defendants. 14 15 16 ) Case No. 08-cv-04571-SC ) ) ORDER ON CROSS MOTIONS FOR ) SUMMARY JUDGMENT ) ) ) ) ) ) ) ) ) ) ) ) 17 18 19 I. INTRODUCTION Now before the Court are Defendant City of Eureka's ("Eureka") 20 21 and Plaintiff KFD Enterprises, Inc.'s ("KFD") cross motions for 22 summary judgment. 23 684, 674, 683, 684, and appropriate for determination without oral 24 argument per Civil Local Rule 7-1(b). 25 below, Defendant Eureka's motion for summary judgment is DENIED. 26 Plaintiff KFD's motion for summary judgment is GRANTED in part and 27 DENIED in part. 28 // The motion is fully briefed, ECF Nos. 672, 675, For the reasons set forth 1 II. BACKGROUND This case arises out of environmental contamination that 2 cleaning business, Norman's Dry Cleaners ("Norman's"), there since 5 1980. 6 tetrachloroethylene ("PCE") during the dry cleaning process and 7 disposed of wastewater containing PCE through drains on its 8 United States District Court occurred at 2907 E St., Eureka, California. 4 For the Northern District of California 3 property. 9 is now contaminated with PCE, and the California Regional Water ECF No. 410 ("FAC") ¶¶ 5, 17. Id. ¶ 22(3). KFD has operated a dry KFD used a chemical called The soil and groundwater around Norman's 10 Quality Control Board ("RWQCB"), North Coast Region, is overseeing 11 investigation and cleanup of the site. 12 II") Ex. B. 13 contamination by failing to properly maintain its municipal sewers. 14 KFD claims that PCE leaked out of the sewers, causing the 15 contamination. 16 ECF No. 675-26 ("KFD RJN KFD asserts that Eureka contributed to the ECF No. 675 ("KFD Opp.") at 1-2. KFD brought this action under the federal Comprehensive 17 Environmental Response, Compensation, and Liability Act ("CERCLA"), 18 42 U.S.C. § 9601 et seq.; the federal Resource Conservation and 19 Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq.; and the California 20 Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety Code 21 § 25300 et seq. 22 contribution, public nuisance, public nuisance per se, private 23 nuisance, dangerous condition of public property, and declaratory 24 relief. 25 the HSAA, as well as for equitable indemnity, contribution, and 26 declaratory relief. 27 KFD's claims. 28 for partial summary judgment on its own RCRA claim and all of KFD also sued Eureka for equitable indemnity, FAC ¶¶ 32-102. Eureka has counterclaimed under CERCLA and Eureka moves for summary judgment on all of ECF No. 672 ("Eureka MSJ") at 1-2. 2 KFD has moved 1 Eureka's counterclaims, except for its claim for contribution under 2 CERCLA § 113(f). ECF No. 674 ("KFD MSJ") at 1. 3 4 III. LEGAL STANDARD there is no genuine dispute as to any material fact and the movant 7 is entitled to judgment as a matter of law." 8 United States District Court Entry of summary judgment is proper "if the movant shows that 6 For the Northern District of California 5 56(a). 9 require a directed verdict for the moving party. Fed. R. Civ. P. Summary judgment should be granted if the evidence would Anderson v. 10 Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). 11 without the ultimate burden of persuasion at trial -- usually, but 12 not always, a defendant -- has both the initial burden of 13 production and the ultimate burden of persuasion on a motion for 14 summary judgment." 15 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 16 "A moving party Nissan Fire & Marine Ins. Co., Ltd. v. Fritz "In order to carry its burden of production, the moving party 17 must either produce evidence negating an essential element of the 18 nonmoving party's claim or defense or show that the nonmoving party 19 does not have enough evidence of an essential element to carry its 20 ultimate burden of persuasion at trial." 21 its ultimate burden of persuasion on the motion, the moving party 22 must persuade the court that there is no genuine issue of material 23 fact." 24 all justifiable inferences are to be drawn in his favor." 25 Anderson, 477 U.S. at 255. 26 scintilla of evidence in support of the plaintiff's position will 27 be insufficient; there must be evidence on which the jury could 28 reasonably find for the plaintiff." Id. Id. "In order to carry "The evidence of the nonmovant is to be believed, and However, "[t]he mere existence of a 3 Id. at 252. 1 IV. DISCUSSION 2 A. Requests for Judicial Notice 3 In their briefs, both parties have submitted requests for I"), KFD RJN II, 683-1 ("Eureka RJN II"). 6 judicial notice are those which are either "(1) generally known 7 within the territorial jurisdiction of the trial court or (2) 8 United States District Court judicial notice. 5 For the Northern District of California 4 ECF Nos. 672-8 ("Eureka RJN I"), 674-21 ("KFD RJN capable of accurate and ready determination by resort to sources 9 whose accuracy cannot reasonably be questioned." Facts subject to Fed. R. Evid. 10 201(b). A court may not take judicial notice of a matter that is 11 in dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th 12 Cir. 2001). Eureka's first request for judicial notice refers only 13 to an order issued by Judge Chesney in this case. 14 in its request, that order is already part of the record. 15 therefore unnecessary for the Court to take notice of the order. 16 Eureka's second request for judicial notice was made in As Eureka notes Eureka RJN II. It is 17 support of its opposition to KFD's motion. Eureka 18 requests that the Court take notice of a series of letters from the 19 RWQCB to Eureka. 20 Eureka failed to produce the documents to be noticed in discovery. 21 ECF No. 684 ("KFD Reply") at 4. 22 these documents are matters of public record, so the objection is 23 OVERRULED. 24 that it received a copy of RWQCB's reimbursement process and an 25 agreement that the city would participate in the cost recovery 26 program. 27 it appears to be undisputed that Eureka has agreed to reimburse 28 some of RWQCB's costs, the Court takes judicial notice of Exhibit KFD objects that the request is untimely and that However, Eureka is correct that The first letter (Ex. 1) is an acknowledgment by Eureka Because the document is an act of the city government and 4 1 1. 2 to Norman's for the 2012/2013 fiscal year. 3 only of the fact that these estimates were made. 4 letter detailing suggested changes to a report prepared by an 5 environmental consultant for Eureka's attorneys. 6 notice only of the document's existence and that the findings and 7 recommendations therein were made. United States District Court For the Northern District of California 8 9 The second letter is an estimate of the RWQCB's costs related The Court takes notice Exhibit 3 is a The Court takes KFD's first request for judicial notice comes in support of its motion. The Court takes notice of Facts 2-5 and 8. Facts 2-5 10 refer to documents that have been filed publicly, and KFD requests 11 only that the Court notice their existence. 12 Fact 8 is a reference to the Code of Federal Regulations, and the 13 Court takes notice of that fact as well. 14 however, are technical documents and opinions, and KFD apparently 15 seeks judicial notice of the facts contained therein. 16 9 refer to documents issued by the RWQCB, a public agency. 17 Court takes notice of those documents solely for the purpose of 18 establishing that the RWQCB has made the findings or 19 recommendations therein. 20 considered established for the purposes of this litigation, as the 21 Court is not persuaded that the expert findings are capable of 22 immediate and accurate determination by a source whose accuracy 23 cannot reasonably be questioned, or that they are not in dispute. 24 Fact 7 refers to a draft remedial action plan prepared by an 25 environmental consultant retained by KFD's attorneys on behalf of 26 Norman's. 27 document was submitted to the RWQCB and is therefore a matter of 28 public record. The Court does so. Facts 1, 7, and 9, Facts 1 and The The findings themselves are not KFD argues that judicial notice is proper because the However, submission of a document by a private 5 an official act of that agency. 3 contained in the report are in dispute, which alone renders the 4 document inappropriate for judicial notice. 5 only that the document exists, but takes no notice of its contents. 6 Fact 5 is a reference to KFD's original complaint in this matter. 7 Again, that document is already part of the record, and judicial 8 United States District Court party to a government agency does not transform the document into 2 For the Northern District of California 1 notice is unnecessary. 9 Additionally, many of the facts The Court takes notice KFD's second request for judicial notice was made in support 10 of its opposition to Eureka's motion. KFD RJN II. The Court takes 11 notice of Facts 2, 3, 4, and 5. 12 only insofar as it recognizes that the RWQCB has created a draft 13 plan, but does not take notice of any of the facts contained 14 therein. The Court takes notice of Fact 1 15 16 B. 17 The parties have also made a number of evidentiary objections. 18 KFD first objects to Exhibits 35, 38, 39, and 58 to the declaration 19 of Charles Bolcom in support of Eureka's motion (ECF No.672-3) on 20 grounds of lack of foundation and lack of personal knowledge. 21 Opp. at 29-30. 22 met the personal knowledge and foundational requirements by 23 supplying deposition testimony. 24 Evidentiary Objections KFD Eureka has provided the necessary foundation and Those objections are OVERRULED. In the same brief, KFD objects to the declaration of Bruce 25 Young (ECF No. 672-2) as a sham declaration. 26 the Ninth Circuit is that a party cannot create an issue of fact by 27 an affidavit contradicting his prior deposition testimony." 28 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). 6 "The general rule in 1 The Ninth Circuit has added two additional requirements that must 2 be met before a declaration can be stricken as a sham. 3 district court must make a factual determination that the 4 contradiction was actually a 'sham.'" 5 inconsistency between a party's deposition testimony and subsequent 6 affidavit must be clear and unambiguous . . . ." 7 Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). United States District Court For the Northern District of California 8 9 Id. at 267. First, "the Second, "the Van Asdale v. KFD takes issue with Mr. Young's statement in his declaration that "[i]f [KFD] had informed the City that it was disposing PCE 10 and/or PCE waste into the City sewer system at any time, that 11 information would be documented in a City record." 12 4 (emphasis added). 13 Mr. Young's deposition testimony that Eureka's record retention 14 policy is "mostly current year plus two years." 15 ("Graben Decl.") Ex. E at 49:10-21. 16 exhibit purported to contain Mr. Young's contradicted testimony is 17 not even a deposition of Mr. Young. 18 of Jan Greben, Exhibit C (ECF No. 675-4), which is a deposition of 19 David Parson and includes no discussion of the issue. 20 at 30. 21 (ECF No. 675-6), which appears to be the correct deposition of Mr. 22 Young. 23 ECF No. 672-2 ¶ KFD asserts that that statement contradicts ECF No. 675-1 The Court first notes that the KFD cites to the declaration See KFD Opp. The Court presumes that KFD intended to refer to Exhibit E The Court finds that paragraph four of Mr. Young's declaration 24 is a sham. Mr. Young's declaration was made in March 2014. 25 deposition testimony indicates that Eureka keeps records for the 26 current year, plus two years. 27 most of the conduct giving rise to this case occurred between 1980 28 and 2003, it seems highly unlikely that Eureka would have a record That means 2012-2014. 7 His Given that policy. 3 would have a record of KFD informing it about the PCE at any time, 4 which is clearly contrary to the city's retention policy. 5 response, Eureka claims that the city records vary by circumstance. 6 However, the only exception to the current year plus two year 7 policy that Mr. Young notes in his deposition is for maps. 8 United States District Court of the type Mr. Young discusses if the city follows its retention 2 For the Northern District of California 1 Decl. Ex. E at 49:16. Indeed, Mr. Young claims in his declaration that Eureka In Graben Mr. Young's assertion that Eureka would retain a record 9 10 indefinitely clearly and unambiguously contradicts his deposition 11 testimony that Eureka typically retains only a few years of 12 records. 13 a record of the type he discusses is inexplicable except as an 14 attempt to create an issue of material fact by contradicting his 15 deposition testimony. 16 objection and STRIKES paragraph four of Mr. Young's declaration. 17 However, KFD's objection on the same grounds to paragraph five of 18 the declaration, which states that Mr. Young was unable to find 19 such a document in his search of the city records, is OVERRULED. 20 That statement does not contradict his deposition testimony. Mr. Young's conclusive statement that the city would have Accordingly, the Court SUSTAINS KFD's KFD also objects to the declaration of Eric Price, ECF No. 21 22 674-15, and Exhibit 1 thereto. 23 corresponding exhibit, deals only with an element of KFD's RCRA 24 claim that does not affect the Court's analysis of these motions. 25 Consequently, the Court declines to rule on that objection at this 26 time. 27 28 This objection, and the Eureka objects to all of the exhibits attached to the declaration of Brett Boon (ECF No. 674-2 Exs. A-N) in support of 8 hearsay. 3 based on lack of personal knowledge are OVERRULED. 4 hearsay objections, it appears from Eureka's brief that it objects 5 to the testimony of Mr. Young and Mr. Parson during their 6 depositions as hearsay. 7 survive summary judgment, a party does not necessarily have to 8 United States District Court KFD's motion on the grounds of lack of personal knowledge and 2 For the Northern District of California 1 produce evidence in a form that would be admissible at trial, as 9 long as the party satisfies the requirements of Federal Rules of ECF No. 683 ("Eureka Opp.") at 23-24. The objections Regarding the Those objections are OVERRULED. "To 10 Civil Procedure 56." 11 418–19 (9th Cir. 2001). 12 admissible form of the evidence that KFD could present at trial. 13 Block v. City of Los Angeles, 253 F.3d 410, The live testimony of the deponents is an Finally, Eureka objects to certain invoices detailing payments 14 owed by KFD to its environmental consultant. That objection is 15 disposed of in the fuller discussion of that evidence in Part 16 IV.C.2, below. 17 18 C. KFD's CERCLA Claims 19 CERCLA provides for recovery of "necessary costs of response" 20 (known as response costs) from certain potentially responsible 21 parties ("PRPs") for releases of hazardous substances. 22 9607(a). 23 must prove that (1) the site at issue is a "facility" as defined in 24 the law; (2) a release or threatened release of hazardous materials 25 from the facility has occurred; and (3) the plaintiff incurred 26 response costs "consistent with the national contingency plan" 27 ("NCP") as a result. 28 F.2d 1149, 1152 (9th Cir. 1989). 42 U.S.C. § To establish liability under that provision, a plaintiff Ascon Properties, Inc. v. Mobil Oil Co., 866 Each party has moved for summary 9 1 judgment on the other's CERCLA claims. 1. 2 3 Potentially Responsible Party CERCLA provides for recovery of response costs from four facility; (2) a past owner or operator of a facility; (3) a person 6 who arranged for disposal, treatment, or transport of a hazardous 7 substance; and (4) any person who accepts hazardous substances for 8 United States District Court classes of "PRPs": (1) the current owner and operator of a 5 For the Northern District of California 4 transport to disposal or treatment facilities. 9 9607(a). 42 U.S.C. § KFD claims that Eureka is liable as a transporter under 10 subsection (4), as an arranger under subsection (3), and as an 11 owner or operator of the sewer system (also potentially a CERCLA 12 facility) under subsection (1). 13 focus on Eureka's status as an arranger or transporter. 14 the Court finds that there is a genuine issue of material fact as 15 to whether Eureka may be considered an owner or operator. 16 Consequently, the Court need not decide whether Eureka may be 17 liable as a transporter or arranger to deny summary judgment on 18 this ground. 19 Most of the parties' pleadings However, The case most on point is Adobe Lumber, Inc. v. Hellman, 658 20 F. Supp. 2d 1188 (E.D. Cal. 2009). As here, Adobe Lumber involved 21 a dry cleaner that disposed of PCE through a floor drain that 22 connected to a municipal sewer. 23 the property on which the dry cleaner operated alleged that leaks 24 in the municipal sewer had contributed to the site's contamination. 25 The city in Adobe Lumber argued that (1) CERCLA exempts public 26 sewers from its definition of "facility," and (2) the site had to 27 be construed as a single facility, so the city could not be 28 considered the owner of a separate facility. And, as in this case, owners of 10 Id. at 1193, 1202. The district court rejected both arguments. 1 Following owned sewers are CERCLA facilities. 4 Westfarm Assocs. Ltd. P'ship v. Wash. Suburban Sanitary Comm'n, 66 5 F.3d 669, 678 (4th Cir. 1995)). 6 "the primary source for determining the number of relevant 7 facilities is the plaintiff's complaint." 8 United States District Court precedent developed in the Fourth Circuit, it found that publicly 3 For the Northern District of California 2 the site at issue in Adobe could be "reasonably or naturally 9 divided into multiple parts" (the sewer and the property above it), Id. at 1193-1202 (discussing The district court also held that Id. at 1203-04. Because 10 the city could be construed as the owner of a separate facility. 11 Id. 12 facie case against the city. 13 the Fourth Circuit nor the Eastern District of California, it finds 14 the logic followed in those cases persuasive. 15 exempt publicly owned treatment works, including sewers, from its 16 definition of facility. 17 The Adobe court held that the plaintiff had made its prima Though this Court is bound by neither CERCLA did not A Ninth Circuit case complicates the picture. In Fireman's 18 Fund Insurance Co. v. City of Lodi, the Court of Appeals noted that 19 "it is doubtful whether [the city of] Lodi may be considered a PRP 20 merely as a result of operating its municipal sewer system." 21 F.3d 928, 945 (9th Cir. 2002). 22 support of that proposition was another case from the Eastern 23 District of California: Lincoln Properties, Ltd. v. Higgins, 823 F. 24 Supp. 1528 (E.D. Cal. 1992). 25 applicable here, because much of the sewer system in that case was 26 owned by the plaintiff, the holder of the private property where 27 the contamination occurred. 28 302 However, the only case cited in Lincoln Properties is not entirely Id. at 1533-34. For the section of sewer that was owned by the defendant, San 11 owner for purposes of CERCLA liability. 3 also held that leakage from the County's sewers constituted a 4 release under CERCLA. 5 County may be liable for releases from its facilities -- viz its 6 portion of the sewer and its wells."). 7 even determined that there was "evidence of releases from County's 8 United States District Court Joaquin County, the Lincoln court determined that the County was an 2 For the Northern District of California 1 facilities sufficient to withstand summary judgment." 9 The Lincoln court's decision to grant summary judgment for the Id. at 1535. The court Id. at 1536-38 ("[A]s a matter of law, the Finally, the Lincoln court Id. at 1538. 10 County was not based on a finding that the County was not a PRP, 11 but rather a decision that the County had proved that it was 12 entitled to the "innocent third party defense." 13 ("[T]he County has established by uncontroverted evidence all the 14 elements of the third party defense. 15 subject to liability on the CERCLA claims against it."). 16 defense requires the defendant to prove (1) that the release was 17 caused solely by a third party; (2) that the defendant exercised 18 due care with respect to the hazardous substance; and (3) that the 19 defendant took precautions against the foreseeable acts or 20 omissions of the third party. 42 U.S.C. § 9607(b)(3). 21 not made those showings. 22 Id. at 1544 Thus . . . the County is not That Eureka has Eureka owned and operated the sewer, which may qualify as a 23 CERCLA facility. The clear weight of authority indicates that the 24 owner of a municipal sewer may be liable under CERCLA for 25 contamination caused by leakage therefrom. 26 issues of material fact as to whether and to what extent Eureka is 27 liable for releases of PCE from its sewer. 28 summary judgment on the ground that it is not a PRP is DENIED. 12 There remain genuine Eureka's motion for 2. 1 2 KFD's Response Costs Eureka argues that KFD has not incurred any response costs Eureka Mot. at 15. 5 appropriate where appellants have no expert witnesses or designated 6 documents providing competent evidence from which a jury could 7 fairly estimate damages." 8 United States District Court and, therefore, is not entitled to any recovery under CERCLA. 4 For the Northern District of California 3 802, 808 (9th Cir. 1988). 9 On the issue of damages, "[s]ummary judgment is McGlinchy v. Shell Chem. Co., 845 F.2d KFD claims that it has incurred response costs because it paid 10 consultants to investigate environmental contamination on its 11 property. 12 Winzler & Kelly ("Winzler") and West Environmental Services and 13 Technology ("WEST") -- to assess contamination of its property. 14 KFD Opp. at 17-19; ECF No. 675-20 ("Daer Decl."). 15 this claim, KFD offers (1) a series of invoices from Winzler (Daer 16 Decl. Ex. A); (2) the declaration of Kenneth Daer, founder and 17 owner of KFD (EDaer Decl.), that KFD paid those invoices; (3) 18 invoices from WEST (ECF No. 672-3 Exs. 53-55); and (4) a 19 declaration from Peter Krasnoff, Principal Engineer at WEST, 20 stating that KFD remains liable for WEST's unpaid invoices (ECF No. 21 675-15, "Krasnoff Decl."). 22 Specifically, KFD claims that it paid two firms -- Eureka makes two arguments in response. In support of First, Eureka objects 23 to the Winzler invoices on the grounds that they are not properly 24 authenticated and are hearsay. 25 costs have either been paid or reimbursed by its insurance 26 companies, administrators, or attorneys. 27 reimbursed or not paid directly are unrecoverable under CERCLA. 28 Second, Eureka argues that KFD's Eureka claims that costs The Court finds that the Winzler invoices have been properly 13 ground. 3 knowledge who testifies that the item is what it is claimed to be. 4 Fed. R. Evid. 901(b)(1). 5 Mr. Daer (to whom the invoices are addressed) includes the 6 statement that the documents are "invoices I paid to my then 7 consultant, Winzler, relating to costs incurred investigating the 8 United States District Court authenticated and accordingly OVERRULES Eureka's objection on that 2 For the Northern District of California 1 environmental contamination." 9 sufficient to authenticate the documents. 10 An item or document may be authenticated by a witness with In this case, the sworn declaration of Daer Decl. ¶ 6. That testimony is In response to the hearsay objection, KFD asserts that the 11 invoices are not offered for the truth of the matters asserted 12 therein, such as "specific work conduct or amounts," but for the 13 limited purpose of demonstrating that KFD's costs were not 14 reimbursed by its insurers. 15 the documents for that purpose alone may be insufficient to defeat 16 summary judgment. 17 that some recovery is possible is not enough; a plaintiff must 18 establish a basis for estimating damages. 19 Because KFD has not argued or laid proper foundation for a hearsay 20 exception, the Court cannot consider the documents as though they 21 had been admitted into evidence. 22 ECF No. 682 at 3. However, admitting As McGlinchy indicates, merely demonstrating 854 F.2d at 808. Nonetheless, a party seeking to avoid summary judgment need 23 not produce evidence in an admissible form, so long as the contents 24 would likely be admissible at trial. 25 satisfied that the invoices combined with Mr. Daer's sworn 26 statement provide a basis for estimating damages that would likely 27 be admissible at trial. 28 evidence for a competent trier of fact to estimate damages and that In this case, the Court is The Court finds that there is sufficient 14 1 Eureka is not entitled to summary judgment on this basis. recoverable because they were paid, or reimbursed, by third 4 parties. 5 that its insurance liability has not been settled, and that it may 6 be required to reimburse its insurers with any recovery it may 7 secure in this case. 8 United States District Court Eureka next argues that any costs KFD incurred are not 3 For the Northern District of California 2 even of costs that were paid or reimbursed by its insurers. 9 Court finds it unnecessary to rule on the complex issues of KFD replies that some of its costs were not reimbursed, Therefore, KFD claims, it may seek recovery The 10 insurance payment and reimbursement at this point because KFD has 11 shown that at least some of its costs have not been paid or 12 reimbursed by any third party. 13 a genuine issue of material fact as to whether it incurred recovery 14 costs. 15 that KFD has not incurred response costs. Eureka is not entitled to summary judgment on the grounds 3. 16 17 KFD has demonstrated that there is Eureka's Response Costs Eureka has counterclaimed for recovery costs under CERCLA, 18 both for recovery of response costs under § 107(a) and for 19 contribution under § 113(f). 20 that Eureka has not incurred any response costs. 21 Eureka has produced two letters. 22 the City Manager that Eureka agrees to "reimburse the [RWQCB]'s 23 costs associated with oversight" of the cleanup at Norman's Dry 24 Cleaners. 25 RWQCB geologist estimating some of the costs for which the RWQCB 26 might seek reimbursement. 27 correct that the evidence it has produced in support of its 28 counterclaim is similar to that which KFD produced in support of ECF No. 355 at 19-21. ECF No. 683-1 Ex. 1. KFD argues In response, First is an acknowledgment from The second is a letter from an ECF No. 683-1 Ex. 2. 15 While Eureka is 1 2 its initial claim, the law nonetheless bars Eureka's recovery. The Supreme Court has made it clear that a party seeking response costs. 5 suffice: "[B]y reimbursing response costs paid by other parties, 6 the PRP has not incurred its own costs of response and therefore 7 cannot recover under § 107(a)." 8 United States District Court recovery of response costs under CERCLA § 107(a) must incur its own 4 For the Northern District of California 3 Corp., 551 U.S. 128, 139 (2007). 9 costs is limited to its reimbursement of the RWQCB, and it Reimbursing costs paid by someone else does not United States v. Atl. Research Eureka's evidence of response 10 therefore cannot recover under § 107(a). 11 judgment on Eureka's first claim for relief in its fourth amended 12 counterclaim is GRANTED. 13 contribution under § 113(f) survives. 14 though eligible to seek contribution under § 113(f)(1), the PRP 15 cannot simultaneously seek to recover the same expenses under 16 § 107(a)."). 17 4. 18 KFD's motion for summary However, Eureka's counterclaim for See id. ("As a result, The National Contingency Plan CERCLA also requires that a response to a release of hazardous 19 materials be consistent with the NCP. A private party's response 20 is consistent with the NCP if the response, "when evaluated as a 21 whole, is in substantial compliance with the applicable 22 requirements [of the NCP], and results in a CERCLA-quality 23 cleanup." 24 KFD's response costs are inconsistent with the NCP and are 25 consequently unrecoverable. 26 assertion that KFD has failed to obtain public comment concerning 27 the response action. 28 comment requirement is an essential element in demonstrating 40 CFR § 300.700(c)(3)(I) (2014). Eureka alleges that Eurkea's argument is based on the Substantial compliance with the public 16 1 consistence with the NCP. See City of Oakland v. Nestle USA, Inc., 2 C-98-3963 SC, 2000 WL 1130066 (N.D. Cal. Aug. 8, 2000) (holding 3 that "[f]ailure to comply with the public participation requirement 4 alone is enough" to find lack of substantial compliance with the 5 NCP). KFD has produced evidence of its compliance with the public 6 United States District Court comment requirements. 8 For the Northern District of California 7 It has (1) participated in preparing and mailing a fact sheet describing investigation into the 9 environmental contamination and inviting public comment, KFD RJN II 10 Ex. B; (2) published information on the investigation in the Eureka 11 newspaper, Krasnoff Decl. ¶ 7 Ex. B; (3) made available WEST's 12 feasibility study at the Humboldt County Library and online, 13 Krasnoff Decl. ¶ 8; (4) met with interested parties; and (5) 14 presented information at a public meeting held in 2007, Krasnoff 15 Decl. ¶ 9; KFD RJN II Exs. D, E. Nonetheless, Eureka argues that KFD's efforts at compliance 16 17 are insufficient because KFD has not sought public comment on its 18 proposed remediation plan. 19 comment would be premature because the RWQCB has not approved the 20 plan. 21 remediation plan is chosen. 22 still seek public comment on the plan to make a CERCLA claim, even 23 though no plan has been approved at this point. 24 However, as KFD points out, such Eureka agrees that public comment may be sought only after a But Eureka still insists that KFD must Eureka's argument seems to be that KFD must wait until the 25 RWQCB has approved a remediation plan and seek public comment on 26 the approved before filing a CERCLA action. 27 explicitly rejected that reading of CERCLA: "[T]here is nothing in 28 the plain language of section 107(a) that indicates that a party 17 The Ninth Circuit has 1 seeking to recover its costs of response must await approval of or 2 action by a state or local government entity. . . . Indeed, there 3 is no indication in the statute that prior approval or action by a 4 state or local government is either necessary or desirable." 5 Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 6 691, 694-95 (9th Cir. 1988). None of the cases Eureka cites can be interpreted as creating 7 United States District Court For the Northern District of California 8 a requirement that government approval of a remedial plan is an 9 element of a CERCLA § 107(a) claim. KFD has produced evidence that 10 it has sought public comment on remedial actions it has taken so 11 far, and the parties agree that public comment on proposed plan 12 would be premature. 13 existence of a genuine issue of material fact as to whether KFD has 14 substantially complied with the CERCLA public comment requirements. 15 Eureka is not entitled to summary judgment on these grounds. 16 Eureka's motion for summary judgment is DENIED as to KFD's § 107(a) 17 CERCLA claim. 5. 18 Those facts are sufficient to establish the Declaratory Relief and Timing of Review Eureka next argues that KFD's lack of a viable § 107(a) claim 19 20 defeats KFD's declaratory relief claim and divests this Court of 21 jurisdiction. 22 has no viable § 107(a) claim. 23 § 107(a) claim survives summary judgment, Eureka's arguments 24 regarding the declaratory relief claim and lack of jurisdiction are 25 unavailing. 26 // 27 // 28 // Those arguments depend on the assumption that KFD Because the Court finds that KFD's 18 1 D. RCRA 2 The Resource Conservation and Recovery Act (RCRA) authorizes present transporter, or past or present owner or operator of a 5 treatment, storage, or disposal facility, who has contributed or 6 who is contributing to the past or present handling, storage, 7 treatment, transportation, or disposal of any solid or hazardous 8 United States District Court private suits against "any past or present generator, past or 4 For the Northern District of California 3 waste which may present an imminent and substantial endangerment to 9 health or the environment." 42 U.S.C. § 6972(b). KFD seeks to 10 recover costs from Eureka under RCRA, and both KFD and Eureka move 11 for summary judgment on this claim. 12 Both motions are DENIED. Eureka claims that it did not contribute to the handling, 13 storage, treatment, transportation, or disposal or any hazardous 14 waste. 15 "contribute" means for the purposes of RCRA. 16 district have held, following direction from the Seventh Circuit, 17 that "contributed to" means "that some affirmative action is 18 required on the part of the defendant, rather than merely passive 19 conduct." 20 8077086 at *3 (N.D. Cal. Jan. 26, 2011); see also Gregory Vill. 21 Partners, L.P. v. Chevron U.S.A., Inc., 2012 U.S. Dist. LEXIS 32644 22 at *25 (N.D. Cal. Mar. 12, 2012). The parties present competing interpretations of what Courts in this Sullins v. Exxon/Mobil Corp., 08-04927 CW, 2011 WL 23 KFD has produced evidence that Eureka's sewer was poorly 24 designed and has leaked for decades, that Eureka has known of the 25 leaks since the 1980s, and that Eureka has failed to fix the sewer. 26 See ECF No. 674-18 Ex. A at 10-15, 21. 27 contrary expert evidence to contest those assertions. 28 design of the sewer, any leakage that occurred, and Eureka's 19 Eureka has produced Whether the 1 knowledge of that leakage constitute affirmative acts sufficient to 2 render Eureka a contributor to the contamination is an unresolved 3 question of fact. 4 judgment on the RCRA claim are DENIED. Accordingly, both parties' motions for summary 5 E. 6 1. 7 United States District Court For the Northern District of California KFD's HSAA Claim Against Eureka Eureka makes two arguments regarding KFD's claim under the 8 9 HSAA California Hazardous Substance Account Act (HSAA). First, Eureka 10 argues that, because the HSAA incorporates CERCLA liability 11 standards, the HSAA claim fails because the CERCLA claim fails. 12 Again, because Eureka's CERCLA claim survives summary judgment, 13 that argument is unpersuasive. 14 that CERCLA's double recovery prohibition bars the HSAA claim. 15 42 U.S.C. § 9614(b) ("Any person who receives compensation for 16 removal costs or damages or claims pursuant to this chapter shall 17 be precluded from recovering compensation for the same removal 18 costs or damages or claims pursuant to any other State or Federal 19 law."). 20 CERCLA and HSAA, summary judgment is not the appropriate time to 21 consider that issue. 22 in CERCLA precludes concurrent liability under state law. 23 in support of its own state law counterclaims in addition to its 24 CERCLA counterclaims, Eureka reminds the Court that a claimant has 25 a "right to pursue multiple, different legal theories, in which to 26 seek its relief." 27 summary judgment on the HSAA claim is DENIED. 28 // In the alternative, Eureka argues See Though KFD may not recover the same costs under both CERCLA prohibits double recovery, but nothing See ECF No. 683 at 22. 20 Indeed, Eureka's motion for 2. 1 Eureka's HSAA Claim Against KFD KFD argues that Eureka's HSAA claim against it must fail based 2 claim. 5 from CERCLA, resulting in similar standards for liability. 6 Cal. Health & Saf. Code §§ 25310, 25323.3. 7 section that forms the basis of Eureka's claim provides relief only 8 United States District Court on the same argument it made against Eureka's CERCLA § 107(a) 4 For the Northern District of California 3 for "[a]ny person who has incurred removal or remedial action 9 costs." The HSAA incorporates many of its standards and definitions Id. § 25363(e). See Most importantly, the Though § 25363(e) is analogous to CERCLA 10 § 113(f) in that both provide rights to contribution, the key 11 difference is that HSAA § 25363(e) limits recovery to costs 12 "incurred", while CERCLA § 113(f) does not. 13 was the key distinction in Atlantic Research, and the Supreme Court 14 left no doubt that "incurred" excludes payments to reimburse the 15 costs of others. 16 liability standards from CERCLA, the meaning of the word "incurred" 17 creates the same requirement for recovery under § 25363(e) as it 18 does for § 107(a). 19 reimburse the RWQCB's costs, and therefore it cannot seek 20 contribution under that section. 21 on Eureka's fourth and fifth claims for relief in its fourth 22 amended counterclaim is GRANTED. 551 U.S. at 139. The word "incurred" Because the HSAA adopts Eureka has produced evidence only that it might KFD's motion for summary judgment 23 24 F. KFD's Other State Law Claims 25 KFD has brought both public and private nuisance claims and 26 claim for dangerous condition of public property under California 27 law. 28 // Eureka moves for summary judgment on all state law claims. 21 1. 1 2 Statute of Limitations Eureka alleges that the statute of limitations period has run claim is both California's general three year statute of 5 limitations, Cal. Civ. Proc. Code § 338, and California's 6 requirement that a plaintiff suing a public entity present an 7 administrative claim "not later than one year after accrual of the 8 United States District Court on KFD's state law claims, including nuisance. 4 For the Northern District of California 3 cause of action." 9 requirement was the basis of Judge Chesney's 2011 order dismissing 10 all of KFD's state law claims that accrued prior to March 6, 2007. 11 See ECF No. 458 at 4-5. 12 damages since March of 2007. 13 sewer continues to leak, and has produced evidence that the sewer 14 remains in poor condition. 15 has been leaking for decades, with no indication that it has been 16 fixed, a reasonable trier of fact could find that KFD's state law 17 claims are based on continuing leakage and that the statute of 18 limitations has not expired. 19 on the ground that the statute of limitations has run on KFD's 20 state law claims is DENIED. 2. 21 22 The basis of this Cal. Gov. Code §§ 911.2(a), 945.4. That latter Eureka argues that KFD cannot prove any However, KFD argues that Eureka's Based on the evidence that the sewer Eureka's motion for summary judgment Preemption Eureka next argues that CERCLA preempts KFD's state law 23 claims. But "CERCLA does not completely occupy the field of 24 environmental regulation." 25 Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 26 2000). 27 Congress's desire to avoid interfering with state law claims. 28 42 U.S.C. § 9614(a) ("Nothing in this chapter shall be construed or ARCO Envtl. Remediation, L.L.C. v. Indeed, CERCLA includes several provisions indicating 22 See liability or requirements with respect to the release of hazardous 3 substances ..."); 42 U.S.C. § 9652 ("Nothing in this chapter shall 4 affect or modify in any way the obligations or liabilities of any 5 person under other Federal or State law, including common law, with 6 respect to releases of hazardous substances or other pollutants or 7 contaminants."). 8 United States District Court interpreted as preempting any State from imposing any additional 2 For the Northern District of California 1 hazardous substance regulation, Eureka's preemption claim must be 9 based on conflict preemption. Because CERCLA does not occupy the field of Conflict preemption exists "where 'compliance with both the 10 11 federal and state regulations is a physical impossibility,' or when 12 the state law stands as 'an obstacle to the accomplishment and 13 execution of the full purposes and objectives of Congress.'" 14 Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 943 (9th 15 Cir. 2002) (quoting Cal. Fed. Sav. and Loan Ass'n v. Guerra, 479 16 U.S. 272, 281 (1987)). 17 applies to the causes of action that KFD brings, Ninth Circuit has 18 expressly held that CERCLA does not preempt state law contribution 19 claims, despite the existence of CERCLA's own contribution scheme. 20 City of Emeryville v. Robinson, 621 F.3d 1251, 1262 (9th Cir. 2010) 21 (holding that the text of CERCLA "precludes any finding of 22 preemption as to state law claims for contribution"). 23 state law tort claims in addition to, or instead of, CERCLA claims 24 neither makes compliance with CERCLA impossible nor stands as an 25 obstacle to its goals. 1 26 1 27 28 Though it has not ruled on preemption as it Recognizing The Court finds that CERCLA does not District courts are divided as to whether CERCLA preempts these types of state law claims, but most have held that CERCLA does not preempt state law claims. See, e.g., Carolina Cas. Ins. Co. v. Oahu Air Conditioning Serv., Inc., CIV. 2:13-1378 WBS A, 2014 WL 23 1 preempt these claims -- notwithstanding CERCLA's prohibition on 2 double recovery -- and DENIES Eureka's motion for summary judgment 3 on this ground. 3. 4 Private Nuisance Eureka argues that it cannot be liable for nuisance because 5 failing to maintain its sewer. 8 United States District Court its involvement in the contamination, if any, was limited to 7 For the Northern District of California 6 contamination may be sufficient to sustain a nuisance action under 9 California law. However, knowledge of the See Redevelopment Agency of City of Stockton v. 10 BNSF Ry. Co., 643 F.3d 668, 674 (9th Cir. 2011) (interpreting 11 California nuisance law as requiring that contamination be "active, 12 affirmative, or knowing" to constitute nuisance) (emphasis added). 13 KFD has presented some evidence that Eureka was aware that its 14 sewer was leaking and that PCE was reaching its wastewater 15 treatment plant. 16 is sufficient to prove Eureka's liability is an issue for the trier 17 of fact. 18 DENIED. 19 // 20 // 21 309557 at *5-*6 (E.D. Cal. Jan. 28, 2014) (CERCLA did not preempt common law claims for apportionment of fault, contribution, indemnity, and subrogation); Bd. of Cnty. Comm'rs v. Brown Grp. Retail, Inc., 598 F. Supp. 2d 1185, 1192-95 (D. Colo. 2009) (CERCLA did not preempt state law negligence and abnormally dangerous activity claims); Quapaw Tribe v. Blue Tee Corp., 03-CV-0846-CVEPJC, 2009 WL 455260 (N.D. Okla. Feb. 23, 2009) (CERCLA did not preempt nuisance, strict liability, or trespass claims) ; City of Waukegan, Ill. v. Nat'l Gypsum Co., 587 F. Supp. 2d 997, 1011 (N.D. Ill. 2008) (CERCLA did not preempt claim under Illinois Water Pollutant Discharge Act); S. Cal. Water Co. v. Aerojet-Gen. Corp., CV 02-6340ABCRCX, 2003 WL 25537163 at *6-*7 (C.D. Cal. Apr. 1, 2003) (CERCLA did not preempt state law claims for nuisance, trespass, and negligence per se). 22 23 24 25 26 27 28 Graben Decl. Ex. E at 166. Whether that evidence Eureka's motion for summary judgment on this ground is 24 4. 1 2 Public Nuisance Eureka claims that KFD has failed to show that it has suffered this case is that KFD's property has been contaminated. 5 discussed previously, the contamination of KFD's private property 6 has required it to conduct environmental assessments of its 7 property. 8 United States District Court harm different in kind to that of the public. 4 For the Northern District of California 3 But the reason for investigations. 9 property that differs in kind from the health risk to the general As The public at large has not been responsible for those KFD therefore may have suffered damage to its 10 public. 11 establish a claim of public nuisance, and whether it is 12 attributable to Eureka's actions remain genuine issues of fact. 13 Eureka's motion for summary judgment on this claim is DENIED. 5. 14 15 Whether this damage is sufficiently different in kind to Dangerous Condition of Public Property Eureka contests the dangerous condition claim on much the same 16 grounds as the nuisance claim: that Eureka lacked actual or 17 constructive knowledge of the release of PCE. 18 KFD has produced evidence sufficient to create a genuine issue of 19 material fact on this issue. 20 on this claim is DENIED. As discussed above, Eureka's motion for summary judgment 21 22 G. Eureka's Other State Law Claims 23 Eureka brings claims under state law for equitable indemnity, 24 contribution and declaratory relief. KFD argues that these claims 25 are preempted by CERCLA. 26 face, CERCLA § 113(f)(1) expressly authorizes claims for 27 contribution, and includes a 'saving' clause that precludes any 28 finding of preemption as to state law claims for The Ninth Circuit disagrees: "On its 25 1 contribution . . . ." City of Emeryville, 621 F.3d at 1262. 2 KFD's motion for summary judgment on these claims is DENIED. 3 4 5 V. CONCLUSION For the foregoing reasons, Defendant Eureka's motion for respect to Eureka's first claim for relief under CERCLA § 107 and 8 United States District Court summary judgment is DENIED. 7 For the Northern District of California 6 Eureka's fourth and fifth claims for relief under the HSAA. 9 motion is DENIED with respect to all other claims and 10 Plaintiff KFD's motion is GRANTED with KFD's counterclaims. 11 12 IT IS SO ORDERED. 13 14 Dated: May 9, 2014 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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