City of West Sacramento, et al., v. R & L Business Management et al, No. 2:2018cv00900 - Document 225 (E.D. Cal. 2020)
Court Description: AMENDED 218 MEMORANDUM, OPINION AND ORDER signed by Senior Judge William B. Shubb on 12/15/20 re 204 Motion. Plaintiffs' 204 motion for summary judgment on the issue of liability on their claim under the Carpenter-Presley-Tanner Hazar dous Substance Account Act, Cal. Health & Safety Code §§ 25363(d), is GRANTED; plaintiffs' motion for summary judgment on their claim for violation of the Gatto Act, Cal. Health & Safety Code §§ 25403.1, 25403.5, is DENIED. (Benson, A.)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 CITY OF WEST SACRAMENTO, CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs, 14 15 16 17 18 19 20 No. 2:18-cv-00900 WBS EFB AMENDED MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THEIR CLAIMS UNDER THE GATTO ACT AND THE HSAA v. R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., a dissolved California corporation; et al., Defendants. 21 22 23 24 25 26 27 ----oo0oo---Plaintiffs City of West Sacramento, California and the People of the State of California (collectively, “plaintiffs”) brought this action to address toxic levels of soil and groundwater contamination resulting from the release of hazardous substances from a metal plating facility formerly located at 319 28 1 1 3rd Street, West Sacramento, California (the “Site”). 2 The court has previously granted summary judgment for 3 plaintiffs on the issue of liability on their claim under the 4 Comprehensive Environmental Response, Compensation, and Liability 5 Act (“CERCLA”), 42 U.S.C. § 9607(a), against defendants R and L 6 Business Management (“R&L”), John Clark, and the Estate of Nick 7 E. Smith (collectively, “defendants”). 8 125).) 9 fact remain as to plaintiffs’ claims under the Resource (Order at 10 (Docket No. The court has also found that triable issues of material 10 Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 7002(a), 11 California public nuisance law, and the Porter-Cologne Water 12 Quality Control Act, Cal. Water Code § 13304(c). (See id. at 14- 13 16; Docket No. 211.) 14 the court has determined that defendants’ contribution to the 15 pollution at the Site is not divisible from the total 16 contamination present at the Site under CERCLA. 17 Order re: Defendants’ Divisibility Defense (“Divisibility Order”) 18 (Docket No. 203).) 19 case have been discussed fully in these prior Orders, and will 20 not be repeated here. 21 Additionally, after an evidentiary hearing (See Mem. and The facts and procedural background of the (See Docket Nos. 125, 203, 211.) The remaining motion before the court is plaintiffs’ 22 motion for partial summary judgment on their Carpenter-Presley- 23 Tanner Hazardous Substance Account Act (“HSAA”) claim, Cal. 24 Health & Safety Code §§ 25363(d), and on their claim under the 25 Gatto Act, Cal. Health & Safety Code §§ 25403.1, 25403.5 and. 26 (See Pls.’ Mot. Partial Summ. J. (“Pls.’ Mot.”) (Docket No. 27 204).) 28 injunction requiring defendants to investigate and clean up On their Gatto Act claim, the City requests a permanent 2 1 releases of hazardous materials at the Site. 2 II. 3 (See id. at 32-35.) Discussion A. HSAA 4 The HSAA allows any “person who has incurred response 5 or corrective action costs in accordance with [CERCLA to] seek 6 contribution or indemnity from any person who is liable pursuant 7 to [the HSAA].” 8 purposes of the HSAA, a “‘responsible party’ or ‘liable person,’ 9 . . . means those persons described in section 107(a) of Cal. Health and Safety Code § 25363(d). For the 10 [CERCLA].” 11 the HSAA has the same elements as a cost recovery claim under 12 CERCLA. 13 12 Cal. App. 5th 252, 297 (2017); Castaic Lake Water Agency v. 14 Whittaker Corp., 272 F. Supp. 2d 1053, 1084 n.40 (C.D. Cal. 2003) 15 (“HSAA creates a scheme that is identical to CERCLA with respect 16 to who is liable.”). 17 Id. § 25323(a)(1). Thus, a cost recovery claim under Orange Cty. Water Dist. v. Alcoa Glob. Fasteners, Inc., Because the court has already found defendants to be 18 liable under CERCLA § 107 (see Docket No. 125), defendants do not 19 dispute that plaintiffs have satisfied the elements of liability 20 on their claim under the HSAA. 21 Accordingly, plaintiffs’ motion summary judgment on the issue of 22 liability under the HSAA will be granted. 23 determined, and plaintiffs do not seek summary judgment on the 24 amount of damages at this time. 25 26 B. (See Defs.’ Opp’n at 2.) Damages have yet to be The Gatto Act The Gatto Act authorizes California “local agencies,” 27 including cities and counties, to investigate and clean up 28 properties within their jurisdiction that have been contaminated 3 1 by hazardous materials and to recover the costs of investigation 2 and cleanup from responsible parties. 3 Code §§ 25403.1, 25403.5. 4 agencies with investigatory and cleanup authority, subject to 5 certain procedural requirements: 6 7 8 9 10 11 12 13 14 See Cal. Health & Safety Section 25403.1 provides local A local agency may, in accordance with this chapter, take any action that the local agency determines is necessary and that is consistent with other state and federal laws to investigate and clean up a release on, under, or from blighted property that the local agency has found to be within a blighted area within the local agency’s boundaries due to the presence of hazardous materials following a Phase I or Phase II environmental assessment . . . . Cal. Health & Safety Code § 25403.1(a)(1)(A). This section applies “whether the local agency owns 15 that property or not.” 16 a court order a local agency may enter blighted property that it 17 does not own to investigate and clean up the property so long as 18 (1) the agency provides the owner of the property with 60 days’ 19 notice to respond and to propose an investigation and/or cleanup 20 plan, and (2) the owner fails to respond or provides an 21 inadequate response. 22 25403.1(b)(2)(A). 23 Id. In other words, without the need for See id. §§ 25403.1(a)(1)(A), Section 25403.5 further allows local agencies to 24 recover the costs they incur during the investigation and cleanup 25 of a site. 26 action to investigate property or clean up, or to require others 27 to investigate or clean up, including compelling a responsible 28 party through a civil injunctive action, a release of hazardous See id. § 25403.5. “[I]f a local agency undertakes 4 1 material, the responsible party shall be liable to the local 2 agency for the costs incurred in the action.” 3 HSAA, a “responsible party” for the purposes of the Gatto Act is 4 anyone who qualifies as a responsible party under CERCLA 5 § 107(a). 6 Id. Like the See id. §§ 25403.5(a), 25403(s), 25323.5(a)(1). Defendants again concede that they are responsible 7 parties under the Gatto Act § 25403.5 because the court has 8 already found them to be liable under CERCLA §107(a). 9 Defs.’ Opp’n at 2; Docket No. 125.) (See Defendants also do not 10 dispute that the City has fulfilled the remaining Gatto Act 11 requirements set out in section 25403.1--namely, (1) that 12 “releases” have occurred on the Site, (2) that the City has 13 determined the Site to be a “blighted property” within a 14 “blighted area” within the City’s boundaries due to the release 15 of hazardous materials, (3) that the City’s determination 16 followed Phase I and Phase II environmental assessments of the 17 Site, and (4) that the City provided defendants with requisite 18 notice to respond and to propose an investigation and/or cleanup 19 plan. 20 See id. § 25403.1(a)(1)(A). Therefore, as the court reads the Gatto Act, the City 21 is entitled to enter the Site and take the necessary action to 22 clean up the contamination. 23 for the City to do so. 24 further and to order defendants to do the investigation and 25 cleanup themselves. 26 case, the court determines that such an order would be premature 27 and impractical at this time. 28 No order of this court is required However, the City asks the court to go Considering the present posture of this District courts have broad discretion “to manage their 5 1 own affairs so as to achieve the orderly expeditious disposition 2 of cases.” 3 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962)); see 4 also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th 5 Cir. 2002). 6 liable under plaintiffs’ CERCLA claim (see Docket No. 125) and 7 this Order finds them to be liable under plaintiffs’ HSAA claim, 8 several of plaintiffs’ claims remain outstanding, including their 9 claims under RCRA, the Porter-Cologne Water Quality Control Act, 10 California public nuisance law, California trespass law, and for 11 declaratory relief. 12 45); Docket Nos. 125, 203, 211.) 13 the court finds that deferring its determination as to whether 14 the City is entitled to permanent injunctive relief under the 15 Gatto Act until final resolution of those remaining claims will 16 aid in the orderly and expeditious disposition of the case. 17 Dietz, 136 S. Ct. at 1087. 18 Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016) Though the court has already found defendants to be (See Third Am. Compl. (“TAC”) (Docket No. For the reasons that follow, See Several of plaintiffs’ other outstanding claims also 19 seek some form of permanent injunctive relief requiring 20 defendants to investigate and clean up the Site. 21 (“The City is entitled to injunctive relief under RCRA § 7002(a), 22 42 U.S.C. § 6972(a), compelling each defendant jointly and 23 severally to conduct a complete, timely, and appropriate 24 investigation and abatement of all actual and potential 25 endangerments arising from the presence of the Contaminants in 26 the environment at the Site, and to obtain regulatory closure of 27 the Site.”); id. ¶ 144 (“Plaintiffs are entitled to injunctive 28 relief compelling defendants jointly and severally, promptly and 6 (See TAC ¶ 85 1 competently to take such action as may be necessary to abate the 2 public nuisance at the Site and to obtain regulatory closure of 3 the Site.”); id. ¶ 157 (“The City is entitled to injunctive 4 relief compelling the defendants jointly and severally, promptly 5 and competently to take such action as may be necessary to abate 6 the trespass . . . .”).) 7 Because injunctive relief “must be narrowly tailored to 8 remedy the specific harm shown,” City and Cty. of San Francisco 9 v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (quoting Bresgal v. 10 Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)), the precise 11 nature and extent of injunctive relief to which plaintiffs are 12 entitled will depend on which, if any, of those claims are 13 successful.1 14 For example, RCRA § 7002(a) authorizes an injunction 15 where a plaintiff can successfully show that a defendant was a 16 past or present generator of hazardous waste, contributed to the 17 handling, storage, treatment, or disposal of hazardous waste, and 18 that the hazardous waste “may present an imminent and substantial 19 endangerment to health or the environment.” 20 6792(a); Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996); 21 LAJIM, LLC v. Gen. Elec. Co., 917 F.3d 933, 943 (7th Cir. 2019). 22 California public nuisance law also authorizes injunctive relief 23 to abate a nuisance--i.e., something that is “injurious to 24 health” or “offensive to the senses”--where a plaintiff can show 25 that a defendant was a substantial factor in causing the See 42 U.S.C. § 26 27 28 The court expresses no opinion in this Order as to the merits of any of plaintiffs’ claims beyond their Gatto Act and HSAA claims. 7 1 1 nuisance, that the nuisance is “substantial and unreasonable,” 2 and that the nuisance affects an entire community or neighborhood 3 at the same time. 4 137 Cal. App. 4th 292, 306 (2006); Cal. Code Civ. P. § 731. 5 See Cty. of Santa Clara v. Atl. Richfield Co., Thus, if defendants are found to be liable under RCRA 6 § 7002(a), and the court finds that injunctive relief is 7 warranted, the court will have to shape any injunctive relief to 8 account for the “imminent and substantial endangerment” that the 9 hazardous waste at the Site poses to health or the environment. 10 See 42 U.S.C. § 6792(a); San Francisco, 897 F.3d at 1244. 11 defendants are also found to be liable under public nuisance law, 12 the injunction may take a different form, as the court will have 13 to ensure that the Site is remedied to the point that conditions 14 there are no longer “substantial and unreasonable” or “injurious 15 to health or offensive to the senses.” 16 App. 4th at 306. 17 But if Santa Clara, 137 Cal. Because plaintiffs’ remaining claims have the potential 18 to alter the scope and extent of any eventual injunctive relief 19 in this way, the court finds that, regardless of whether the City 20 is entitled to an injunction under the Gatto Act,2 issuing a 21 22 23 24 25 26 27 28 Whether the Gatto Act authorizes suits for injunctive relief is not entirely clear. Section 25323.5 of the Act contemplates that, in instances where a local agency “undertakes action to investigate property or clean up, or to require others to investigate or clean up, including compelling a responsible party through a civil injunctive action, a release of hazardous material, the responsible party shall be liable to the local agency for the costs incurred in the action.” See Cal. Health & Safety Code §§ 25323.5(a). One California Court of Appeals has held that similar language contained in the Polanco Redevelopment Act, when read in concert with language authorizing redevelopment agencies to take “any action” necessary to remove hazardous substances from properties within a redevelopment project area, 8 2 1 permanent injunction prior to final judgment would be premature. 2 Cf. Lincoln Props., Ltd. v. Higgins, No. S-91-760 DFL GGH, 1993 3 WL 217429 at *16 (E.D. Cal. Jan. 21, 1993) (stating that, 4 although plaintiff was entitled to injunctive relief under RCRA 5 and public nuisance law at summary judgment stage, “[t]he precise 6 nature and scope of injunctive relief shall be determined, and 7 the injunction shall issue, at a later date”). 8 Moreover, issuing permanent injunctive relief at this 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 authorized redevelopment agencies to seek injunctive relief requiring responsible parties to clean up hazardous substances on property within a redevelopment project area. See Redev. Agency of San Diego v. San Diego Gas & Elec. Co., 111 Cal. App. 4th 912, 920 (2003). This interpretation may also apply to the language in the Gatto Act, inasmuch as the California Legislature has declared the Gatto Act to be the “policy successor to the Polanco Redevelopment Act” and “that any judicial construction or interpretation of the Polanco Redevelopment Act also apply to [the Gatto Act].” Cal. Health & Safety Code § 25403.8. On the other hand, plaintiffs do not point to, and the court is not aware of, any case in which a local agency has obtained an injunction under the Gatto Act compelling a responsible party to investigate or clean up a site contaminated with hazardous materials. The Act’s text and structure seem overwhelmingly concerned with authorizing local agencies to investigate, clean up, and recover costs for contaminated sites themselves. See Cal. Health & Safety Code § 25403.1-25403.5. For instance, the Act imposes a number of detailed requirements on local agencies to ensure that their investigations and/or cleanups receive California Department of Toxic Substances Control (“DTSC”) or the appropriate regional water board approval. See, e.g., id. § 25403.1(a)(2)(B) (requiring that the local agency “submit an investigation plan and cost recovery agreement to the regional board or the department for review and approval” before taking action to clean up the release); § 25403.1(a)(2)(C) (“After completion of the investigation plan, have a cleanup plan prepared by a qualified independent contractor.”). These requirements would seem to be superfluous if local agencies were simply entitled to injunctive relief compelling responsible parties to investigate and clean up the site instead of the agency. However, the court does not resolve that issue at this time. 9 1 juncture would be inconsistent with Orders previously issued by 2 the court pertaining to plaintiffs’ CERCLA § 107 claim. 3 Docket Nos. 125, 203). 4 defendants to be jointly and severally liable for plaintiffs’ 5 necessary response costs under CERCLA § 107 (see id.), this Order 6 finds that the defendants are also liable under the HSAA, and the 7 City has its remedies under the Gatto Act, the City will be 8 entitled to enter the Site, perform its own investigation and 9 cleanup, and to recover the resulting costs from defendants. (See Since the court has already found See 10 42 U.S.C. § 9607(a); Cal. Health & Safety Code §§ 25363(d), 11 25403.5. 12 should; to have both of them doing it at the same time would 13 potentially lead to chaos. 14 appropriately be resolved at the time of final judgment, when the 15 precise scope of the plaintiffs’ remedy under CERCLA and their 16 other claims are determined after hearing. 17 Either the City should do the cleanup or the defendants This potential conflict would more IT IS THEREFORE ORDERED that plaintiffs’ motion for 18 summary judgment on the issue of liability on their claim under 19 the Carpenter-Presley-Tanner Hazardous Substance Account Act, 20 Cal. Health & Safety Code §§ 25363(d), is hereby GRANTED; 21 AND IT IS FURTHER ORDERED that plaintiffs’ motion for 22 summary judgment on their claim for violation of the Gatto Act, 23 Cal. Health & Safety Code §§ 25403.1, 25403.5, is hereby DENIED. 24 Dated: December 15, 2020 25 26 27 28 10
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