Sullins et al v. Exxon/Mobil Corporation, No. 4:2008cv04927 - Document 124 (N.D. Cal. 2011)
Court Description: ORDER DENYING DEFENDANTS RULE 50 MOTION AND ITS MOTION FOR A HEARING; FINDINGS OF FACTS AND CONCLUSIONS OF LAW AFTER BENCH TRIAL, Motions terminated: 115 MOTION for Oral Argument on Post-Trial Briefing Re: RCRA and Equitable Contribution Claims filed by Exxon/Mobil Corporation. Signed by Judge Claudia Wilken on 1/26/2011. (ndr, COURT STAFF) (Filed on 1/26/2011)
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Sullins et al v. Exxon/Mobil Corporation Doc. 124 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 Plaintiffs, 8 9 United States District Court For the Northern District of California 10 v. EXXON/MOBIL CORPORATION, Defendant. 11 / 12 13 No. 08-04927 CW CARLTON A. SULLINS, et al., ORDER DENYING DEFENDANT’S RULE 50 MOTION AND ITS MOTION FOR A HEARING; FINDINGS OF FACTS AND CONCLUSIONS OF LAW AFTER BENCH TRIAL Plaintiffs Carlton A. Sullins, Rita Sullins and Don-Sul, Inc. 14 (collectively, the Sullinses) initiated this action seeking to 15 recover damages, cleanup costs and a cleanup injunction resulting 16 from environmental contamination on their property allegedly caused 17 by Defendant Exxon/Mobil Corporation (Exxon Mobil). 18 proceeded to a jury trial on Plaintiffs’ nuisance claim. 19 found that Defendant had caused contamination on Plaintiffs’ 20 property but that the contamination did not substantially and 21 unreasonably interfere with Plaintiffs’ use and enjoyment of the 22 property. 23 Thereafter, a bench trial was held on Plaintiffs’ remaining two 24 equitable claims for violation of 42 U.S.C. § 6972(a)(1)(B), the 25 Resource Conservation and Recovery Act (RCRA), and equitable 26 contribution under California Civil Code § 1432. 27 of Plaintiffs’ evidence at the bench trial, Defendant made a motion The matter The jury Thus, the jury returned a verdict in favor of Defendant. After the close 28 Dockets.Justia.com 1 under Rule 50 of the Federal Rules of Civil Procedure for judgment 2 as a matter of law on the RCRA and equitable contribution claims. 3 At the end of the bench trial, the Court ordered the parties to 4 submit closing arguments in writing. 5 significant issue on the RCRA claim was whether the contamination 6 on the property posed a substantial and imminent endangerment to 7 health or the environment. 8 Court also noted that the significant issues on the equitable 9 contribution claim was whether the cleanup orders issued by the The Court noted that the Reporter's Transcript (RT) at 832. The United States District Court For the Northern District of California 10 Alameda County Department of Environmental Health (ACEH) addressed 11 to Defendant and Plaintiffs are orders having the force of law, and 12 create a joint obligation upon the parties, as required for an 13 equitable contribution claim. 14 cleanup costs would be at issue. 15 If so, Defendant’s fair share of the RT at 805-06, 832. The parties have submitted their briefs. Defendant has moved 16 for oral argument on these matters. 17 papers submitted by the parties, the Court denies Defendant’s Rule 18 50 motion and motion for a hearing. 19 that Plaintiffs have not proved by a preponderance of the evidence 20 that the contamination on their property poses a substantial and 21 imminent endangerment to health or the environment. 22 finds and concludes that the cleanup orders create a joint 23 obligation upon the parties but that Plaintiffs have failed to 24 prove by a preponderance of the evidence that they have paid more 25 than their fair share of that obligation. 26 27 28 2 Having considered all the The Court finds and concludes The Court also FINDINGS OF FACT 1 2 Carleton and Rita Sullins, through their corporation Don-Sul, 3 Inc., are the owners of the real property located at 187 North L. 4 Street, Livermore, California. 5 in 1972 and operated an equipment rental business, Arrow Rentals, 6 on it from 1972 to 2009. 7 gas station was operated on the property. 8 underground storage tanks (USTs) were installed and operated on the 9 property: three 1,500 gallon tanks, one 4,000 gallon tank and one United States District Court For the Northern District of California 10 11 Plaintiffs purchased the property Sometime prior to 1972, a Mobil-branded During that time, five 6,000 tank, and the associated underground piping. Plaintiffs removed the three 1,500 gallon tanks shortly before 12 closing on their purchase of the property. In 1984, they removed 13 the two remaining tanks and installed one new 1,000 gallon tank for 14 use in their business. Plaintiffs removed this tank in 1993. 15 The soil and the groundwater on the property is contaminated 16 with gasoline-type petroleum hydrocarbons which emanated from two 17 sources: (1) releases from the USTs and the connecting pipelines 18 and (2) a spill, in 1985, by Plaintiffs’ contractor, Pitcock 19 Petroleum, when it mistakenly delivered 600 gallons of gasoline 20 into a monitoring well instead of into a UST. 21 of Plaintiffs' expert, Dr. Raymond Kablanow). 22 RT at 439 (testimony Sometime after Plaintiffs purchased the property, the City of 23 Livermore and the ACEH concluded that the soil and groundwater on 24 the property contained hazardous materials and ordered Plaintiffs 25 and Defendant, as responsible parties, to develop and implement a 26 remediation plan. 27 investigate the contamination on the property, to report to the 28 Plaintiffs have hired several consultants to 3 1 governmental agencies and to prepare a remediation plan. 2 Plaintiffs have applied to the State Water Resources Control 3 Board’s Underground Storage Tank Fund (UST Fund) for reimbursement 4 of the fees they have paid to consultants. 5 the UST Fund has paid for approximately eighty-five percent of the 6 remediation costs. 7 remediate the property and has not contributed to Plaintiffs’ 8 efforts to comply with the regulatory agencies’ cleanup orders. Defendant has made no effort to investigate or CONCLUSIONS OF LAW 9 United States District Court For the Northern District of California 10 The parties agree that I. Rule 50 Motion 11 Federal Rule of Civil Procedure 50(a) provides: 12 (1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: 13 14 (A) resolve the issue against the party; and 15 (B) grant a against the controlling a favorable 16 17 18 motion for judgment as a matter of law party on a claim or defense that, under the law, can be maintained or defeated only with finding on that issue. Because the claims at issue here are equitable and have been 19 tried to the Court in a bench trial, Rule 50, which applies to jury 20 trials, is not applicable. 21 is denied. 22 II. RCRA Claim 23 24 25 26 27 28 Therefore, Defendant's Rule 50 motion RCRA subsection B provides that any person may commence a civil action (B) against any person, . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, 4 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . 42 U.S.C. § 6972(a)(1)(B). A. Generator, Transporter, Owner or Operator Who Contributed to Past Handling, Storage, Treatment, Transportation or Disposal of Hazardous Waste Defendant argues that Plaintiffs have failed to set forth evidence that it owned or operated the USTs on the property or contributed to the contamination. Defendant points out that the only evidence of ownership of the property prior to 1972 is that it was owned by Mona Holm, an unrelated third party. Defendant argues that, although Plaintiffs may have established that there was a Mobil-branded gas station on the property prior to 1972, they have not established that Mobil owned or operated that gas station. Defendant posits that many service stations are operated by independent dealers who sell gasoline branded by a particular oil company and the service station on Plaintiffs' property might have been of that ilk. Defendant contends that supplying gasoline to the operator of a gas station would not create RCRA liability because it does not meet the requirement that a defendant has contributed to the handling, storage, treatment, transportation or disposal of any hazardous waste. The phrase "contributed to" in RCRA requires some degree of causation of the contamination by the party to be held liable. Hinds Investments, L.P. v. Team Ents., Inc., 201 WL 922416, *10 (E.D. Cal.); California Dep't of Toxic Substances Control v. Interstate Non-Ferrous Corp., 298 F. Supp. 2d 930, 979 (E.D. Cal. 27 28 RT at 279:11-13. 5 1 2003). 2 required on the part of the defendant, rather than merely passive 3 conduct. 4 847, 854 (7th Cir. 2008). 5 "Contributed to" means that some affirmative action is Sycamore Indus. Park Assocs. v. Ericsson, Inc., 546 F.3d Plaintiffs point to the following evidence which, they argue, 6 establishes that Defendant operated the Mobil gas station on the 7 property and contributed to the contamination. 8 testified that, from 1961 to 1965, he was employed by Mobil Oil 9 Company as a fuel truck dispatcher and, in that role, he dispatched Mr. Sullins United States District Court For the Northern District of California 10 fuel to a Mobil station on the property. 11 Mr. Sullins testified that, when he and his former business partner 12 acquired the property in 1972, he removed the existing fuel pumps, 13 which were red--Mobil’s trademark color. 14 Sullins also testified that, when he took possession of the 15 property in 1972, he found a plaque on the office wall, dated 1961, 16 which stated, “John Bowersox, we are pleased you have completed ten 17 years as a Mobil dealer. . . .” and was signed by a Division 18 Manager of Mobil Oil Company. 19 Plaintiffs point to a June 5, 2006 letter from Hany Fangary, 20 Defendant’s counsel, regarding “Former Mobil LIV, 187 North L 21 Street, Livermore, California.” 22 Fangary summarized his research of the past ownership of the 23 property. 24 deeds and title to the property, he found that it was originally 25 owned by S.C. and K.O. Buck, who, in 1948, sold it to Leslie Holm. 26 In 1960, Leslie Holm sold it to Mona Holm. 27 property from 1960 to 1972, when it was purchased by G.R. Donelly, 28 Id. RT 241:12-18, 242:6-9. RT 255:15-25; 256:1. Mr. RT at 258:20-260:3; Exh. 5. Exh. 205. In this letter, Mr. He stated that, based on his review of the grant 6 Mona Holm owned the Mr. Sullins’ business partner. 2 Property operated as a Mobil service station from 1951 to 1969. . . 3 . Five USTs were located onsite during the former Mobil station 4 operations: three 1,500 gallon, one 4,000 gallon, and one 6,000 5 gallon.” 6 Id. Mr. Fangary wrote, “The 1 Id. Finally, Plaintiffs point to the testimony of Albert Ridley, 7 an engineering geologist, who was retained by the City of Livermore 8 to evaluate the property and the entire city block on which it is 9 located. RT 158:8-15. Mr. Ridley testified that, as part of his United States District Court For the Northern District of California 10 investigation of the property, he went to the City of Livermore’s 11 Building Department and found a record of a 1960 building permit by 12 Socony Mobil to install an underground storage tank on the property 13 and a fee paid for the permit. 14 RT 231:7-25. The Court finds as a matter of fact that this evidence shows 15 that Defendant operated a Mobil gas station on the property between 16 1951 and 1969 and, during that time, utilized the five USTs that 17 are at issue here. 18 permit for one of the USTs can only mean it was responsible for 19 installing and operating it. 20 evidence in support of its theory that it merely supplied gasoline 21 to an independent dealer. 22 The fact that Mobil obtained the building Furthermore, Defendant submits no The Court finds, as did the jury, that Plaintiffs established 23 by a preponderance of the evidence that the contamination on the 24 property was caused, in part, by leaking USTs. 25 B. 26 In Meghrig v. K.C. Western, Inc., 516 U.S. 479, 480 (1996), 27 28 Substantial and Imminent Endangerment the Supreme Court determined that “an endangerment can only be 7 1 ‘imminent’ if it threatens to occur immediately . . . This language 2 implies that there must be a threat which is present now, although 3 the impact of the threat may not be felt until later.” 4 in original). 5 In Price v. United States Navy, the Ninth Circuit clarified 6 the meaning of subsection B’s “imminent and substantial 7 endangerment” requirement: 8 9 10 United States District Court For the Northern District of California (emphasis 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A finding of “imminency” does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present. “An imminent hazard may be declared at any point in a chain of events which may ultimately result in harm to the public.” Imminence refers “to the nature of the threat rather than identification of the time when the endangerment initially arose.” Moreover, a finding that an activity may present an imminent and substantial harm does not require actual harm. Courts have also consistently held that endangerment means a threatened or potential harm and does not require proof of actual harm. 39 F.3d 1011, 1019 (9th Cir. 1994). substantial or serious, and “there must be some necessity for the action.” Id. Following Price, district courts in the Ninth Circuit have interpreted “imminent and substantial endangerment” liberally. “Because the word ‘may’ precedes the standard of liability, Congress included expansive language intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.” California Dep’t of Toxic Substances Control v. Interstate NonFerrous Corp., 298 F. Supp. 2d 930, 980 (E.D. Cal. 2003). Moreover, “substantial” does not require quantification of the endangerment. Id. “Endangerment is substantial if there is some 27 28 The endangerment must be 8 1 reasonable cause for concern that someone or something may be 2 exposed to a risk of harm by a release or a threatened release of a 3 hazardous substance if remedial action is not taken.” Id. However, “there is a limit to how far the tentativeness of the 4 5 word may can carry a plaintiff.” Crandall v. City and County of 6 Denver, Colorado, 594 F.3d 1231, 1238 (10th Cir. 2010) (emphasis in 7 original). 8 must “threaten to occur immediately.” 9 U.S. at 485). Thus, the endangerment cannot be merely possible, but Id. (citing Meghrig, 516 And, there is no endangerment unless the present or United States District Court For the Northern District of California 10 imminent situation can be shown to present a risk of later harm. 11 Id. 12 must be imminent. 13 someone may do something with hazardous waste that, absent 14 protective measures, can injure human beings. 15 Furthermore, a showing of soil and groundwater pollution by itself 16 does not constitute an imminent and substantial endangerment. 17 Rivers Terminal, L.P. v. Chevron USA, Inc., 96 F. Supp. 2d 432, 446 18 (M.D. Pa. 2000); Davies v. National Cooperative Refinery Ass’n, 963 19 F. Supp. 990, 999-1000 (D. Kan. 1997) (although evidence showed 20 resulting threat from high levels of contamination would be 21 substantial, it did not establish likelihood that any person would 22 actually be exposed to it). 23 Thus, although the harm may be in the future, the endangerment Id. It is not enough that, in the future, Id. at 1239. Two Plaintiffs cite trial evidence to argue that substantial and 24 imminent endangerment to health or the environment will result from 25 the contamination on the property. 26 Raynold Kablanow, their expert, and Barbara Mickelson, Defendant’s 27 expert. 28 They cite testimony from Dr. Specifically, Dr. Kablanow testified that there is a high 9 1 concentration core of contamination on the property, RT at 499:3-5, 2 that there is free product, basically pure gasoline, floating on 3 top of the groundwater, RT at 525:17-526:20, and that “when the 4 concentrations of dissolved gasoline gets greater than what water 5 would–-would put into solution, then a separate phase develops. 6 free-product phase develops,” as was observed on the property, RT 7 at 539:5-23. 8 been a lot [of contaminant] . . . to form a separate phase and to 9 form a big groundwater contamination plume.” United States District Court For the Northern District of California 10 A Dr. Kablanow also testified that there “must have RT at 569:2-6; 8-10. Ms. Mickelson testified that more than 500 milligrams of 11 contaminant per kilogram was detected on the property and this 12 level of contamination would “not be allowed to be left in place 13 without some kind of screening risk assessment” by the regulatory 14 authorities. 15 measured at boring G is 12,000 milligrams per kilogram). 16 RT at 673:14-674:1; 644:13-19 (highest concentration Plaintiffs point to Dr. Kablanow’s statement, “Gasoline is not 17 normal in the environment,” to show that the environment is 18 endangered. 19 letter from ACEH to Plaintiffs and Defendant stating that the 20 property Plaintiffs also cite Exhibit 187, a September 4, 2008 27 is located within the Livermore-Amador Groundwater Basin where groundwater is currently used as a source of drinking water. We do not believe that the requisite level of drinking water quality will be attained within a reasonable time period at your site. Although unauthorized releases occurred at the site more than 20 years ago, highly elevated concentrations of petroleum hydrocarbons still remain in soil and groundwater beneath the site. Restoration of water quality to the requisite drinking water quality by natural attenuation processes is likely to require several additional decades or longer. Given the potential for groundwater use within the Livermore-Amador Groundwater Basin, we do not believe 28 10 21 22 23 24 25 26 1 2 3 this long-term degradation of water quality in this area of the basin is justified. Therefore, your case cannot be closed at this time. Ex. 187 at 2.1 Defendant argues that Plaintiffs’ evidence fails to prove 4 5 there is a substantial likelihood of endangerment from 6 contamination and points out that neither Dr. Kablanow nor any 7 other witness testified to health or environmental risk. 8 cites Dr. Kablanow’s testimony that the contaminant plume is 9 shrinking due to natural processes. Defendant RT at 445:23-446:4; 498:2- United States District Court For the Northern District of California 10 499:5 (through natural attenuation the original large plume of 11 contamination has shrunk to the high concentration core). 12 Defendant also cites the testimony of Eric Uranga, Assistant 13 Director of Community Development for the City of Livermore, that 14 the property is not specifically mentioned in the City of 15 Livermore’s five year development plan and that properties in 16 downtown Livermore do not pump their own drinking water. 17 842:11-843:15, 844:16-18. RT at 18 Plaintiffs have failed to prove by a preponderance of the 19 evidence that the contamination on the property may present an 20 imminent and substantial endangerment to health or the environment. 21 1 27 Defendant objects on hearsay grounds to the admission of Exhibit 187 and all letters from ACEH and the City of Livermore. At trial, the Court admitted these letters as proof that they were sent and received, not as proof of the matters asserted therein. RT 797:20-22; 798:21-25. Plaintiffs argue that the letters are admissible under Rules 803(8) and 807 of the Federal Rules of Evidence, which provide a hearsay exception for public records and reports and a residual hearsay exception. The Court admits Exhibit 187 and the other regulatory letters under both hearsay exceptions. However, as explained below, Plaintiffs mischaracterize the meaning of Exhibit 187; it does not aid Plaintiffs in establishing imminent and substantial endangerment to health or the environment. 28 11 22 23 24 25 26 1 At most their evidence shows that there is substantial 2 contamination on the property and that the level of the 3 contamination warrants some kind of screening risk assessment by 4 the regulatory agencies. 5 testimony that someone or something may be exposed to a risk of 6 harm by the contamination if remedial action is not taken. 7 Kablanow’s brief statement that any presence of gasoline is not 8 normal to the environment does nothing to establish that 9 endangerment is caused by the particular contamination found on However, Plaintiffs fail to point to any Dr. United States District Court For the Northern District of California 10 Plaintiffs’ property. Furthermore, Exhibit 187 fails to specify if 11 the groundwater on the property ties into the Livermore-Amador 12 Groundwater Basin’s groundwater supply or the probability that 13 groundwater from the property would be used. 14 Plaintiffs interpret this letter to establish that the 15 groundwater on the property will definitely be used for drinking 16 water and this means that, without remediation, someone or 17 something will be harmed. 18 that at some unknown time in the future there is a possibility that 19 groundwater from the property might be tied into groundwater in the 20 Basin that may be used as drinking water. 21 of groundwater on the property and whether any of the water under 22 the property is or will be used for drinking water would require 23 expert testimony, which Plaintiffs failed to produce at trial. 24 However, the letter merely speculates To establish the level This case is similar to several cases where the plaintiffs 25 proved that there was substantial contamination on their property, 26 but failed to prove that the contamination was likely to cause harm 27 to someone or something. 28 For instance, in Two-Rivers Terminal, the 12 1 plaintiff’s consultant opined that, because there was a water 2 supply on the plaintiff’s contaminated property and the state 3 department of environmental protection had deemed the supply 4 usable, a person could be harmed by drinking it. 5 445. 6 might consider the water drinkable, on a RCRA claim, federal law, 7 not state law, is relevant, and the fact that no one was drinking 8 the water eliminated it as a threat to health or the environment. 9 Id. at 446. 96 F. Supp. 2d at The court held that, even though the state regulatory agency The court concluded that the plaintiff had merely United States District Court For the Northern District of California 10 shown that substantial contamination existed on its property and 11 this was insufficient to establish liability under RCRA. 12 446-47. 13 the plaintiff’s evidence, an expert report that stated, “[T]he 14 presence of firing-range-related contaminants on the site, 15 primarily total lead, represents a potential exposure to risk to 16 both humans and wildlife. 17 obtained during this investigation would be necessary to evaluate 18 the degree of risk to humans and wildlife.” 19 Cir. 2009). 20 permit a factfinder to assess the magnitude of the possible risk 21 identified in the . . . report. . . . There is thus insufficient 22 evidence for a jury to find that the alleged contamination presents 23 a reasonable prospect of future harm, and hence that it may present 24 an imminent and substantial endangerment to the health or the 25 environment.” 26 contamination on the site presented a potentially serious risk, the 27 plaintiff relied solely on the evidence that the contamination 28 Id. at In Cordiano v. Metacon Gun Club, Inc., the court reviewed A risk assessment utilizing the data 575 F.3d 199, 211 (2nd The court held that this evidence was “insufficient to Id. Additionally, to establish that the lead 13 1 exceeded the state’s thresholds for lead contamination on similar 2 residential sites. 3 environmental standards do not define a party’s federal liability 4 under RCRA. 5 that anyone was subject to long-term exposure to lead contamination 6 at the site, or that realistic pathways of exposure were there. 7 Id. at 213. 8 prove that the potential harm at issue rose to the level of serious 9 endangerment. Id. Id. at 212. The court explained that state Further, the plaintiff had provided no evidence Thus, the court held that the plaintiff had failed to Id. at 214. United States District Court For the Northern District of California 10 In Newark Group, Inc. v. Dopaco, Inc., 2010 WL 1342268, *5, 6 11 (E.D. Cal.), the court held that the plaintiff’s evidence that the 12 contamination in the soil and groundwater on its property far 13 exceeded the environmental cleanup standards set by state and 14 federal regulatory agencies, together with the state agency’s 15 statement that it considered all groundwater in the Central Valley 16 Region to be a potential source of municipal or domestic water 17 supply, was insufficient to show that the risk of endangerment from 18 the contamination was imminent. 19 plaintiff had merely shown that the endangerment was possible, but 20 was required to show that the endangerment was imminent by showing 21 that it threatened to occur immediately. 22 that evidence that certain samples from the property exceeded 23 government standards did not provide an adequate basis for a jury 24 to conclude that federal law under RCRA has been violated. 25 Similarly, Plaintiffs here have merely shown that the 26 contamination on the property exceeds state regulatory standards 27 and that the groundwater on the property potentially may be, at 28 The court explained that the 14 Id. at 7. The court held Id. 1 some unknown time in the future, a source of drinking water. 2 Court finds and concludes that this is insufficient to show, by a 3 preponderance of the evidence, either the imminence of harm to 4 health or the environment or the substantial nature of the future 5 harm. 6 III. Judgment shall enter for Defendant on the RCRA claim. Equitable Contribution 7 California Civil Code § 1432 provides, in relevant part: 8 a party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him. 9 10 United States District Court For the Northern District of California The 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Equitable contribution is the right to recover, not from the party primarily liable for a loss, but from a co-obligor who shares such liability with the party seeking contribution. Residential v. Kemp, 153 Cal. App. 4th 675, 684 (2007). The right of contribution, although related to some former transaction or obligation, exists as a separate contract implied by law. Id. Where two or more parties are jointly liable on an obligation and one of them makes payment of more than its share, the one paying has a claim against the others for their proportion of what it has paid for them. Id. The purpose of this rule of equity is to accomplish substantial justice by equalizing the common burden shared by co-obligors and preventing one obligor from profiting at the expense of others. Id. The right of contribution arises as soon as a party pays more than its share of the obligation, but not until then. Jackson v. Lacy, 37 Cal. App. 2d 551, 559 (1940). A. Joint Obligation Plaintiffs argue that the cleanup orders from the state 27 28 Morgan Creek 15 1 regulatory agencies create a joint obligation, pointing out that 2 these orders, all of which are addressed to both parties, state: 7 If it appears as though significant delays are occurring or reports are not submitted as requested, we will consider referring your case to the Regional Board or other appropriate agency, including the County District Attorney, for possible enforcement actions. California Health and Safety Code, Section 25299.76 authorizes enforcement including administrative action or monetary penalties of up to $10,000 per day for each day of violation. 8 Plaintiffs also cite Health and Safety Code § 25299.70, which 3 4 5 6 9 provides that an owner or operator who has not complied with any United States District Court For the Northern District of California 10 corrective action order shall be liable for the full costs incurred 11 in cleaning up the site, and § 25299.73, which provides that the 12 standard for the obligation to pay any costs of corrective action 13 is strict liability. 14 orders are enforceable under the California Health and Safety Code, 15 they create a joint obligation in that “they are addressed to both 16 the Sullins and ExxonMobil as parties who are jointly responsible 17 for the remediation of the Property.” Plaintiffs argue that, because the cleanup 18 Under California Civil Code § 1427, an obligation is defined 19 as “a legal duty, by which a person is bound to do or not to do a 20 certain thing.” 21 arises either from a contract between the parties or the operation 22 of law, which may be enforced in the manner provided by law, or by 23 civil action or proceeding. 24 Under California Civil Code § 1428, an obligation California Health and Safety Code §§ 25280 et seq. govern the 25 operation of USTs in California. 26 corrective action requirements in response to unauthorized releases 27 from USTs. 28 Section 25296.10 provides the Section 25296.10(c)(1) provides that, when a local 16 agency requires a responsible party to undertake corrective action 2 pursuant to an oral or written order, that party shall prepare a 3 work plan that details the corrective action that party shall take 4 to comply. 5 responsible party does not comply with the order, the local 6 regulatory agency may undertake the corrective action. 7 25299(d)(1) and (2) provides that any person who violates any 8 corrective action requirement established pursuant to § 25296.10 is 9 liable for a civil penalty of up to $10,000 for each UST for each 10 United States District Court For the Northern District of California 1 day of violation and the penalty may be imposed in a civil action 11 or administratively by the regulatory agency. 12 Section 25296.10(f)(1) provides that, if the Section The Court concludes that these statutes governing the 13 operation of USTs establish that the cleanup orders are orders that 14 carry the force of law and create the joint obligation necessary 15 for an equitable contribution claim. 16 use the word “shall” when indicating how a responsible party is to 17 respond to a cleanup order shows that the party does not have a 18 choice; it must comply with the order. 19 to comply with a cleanup order, the state agency has the authority 20 to impose a civil penalty administratively or to file a civil 21 action to impose the penalty. 22 obligation under Civil Code § 1427: a legal duty that the party is 23 bound to do or not do a certain thing and that may be enforced in a 24 manner prescribed by law or in a civil proceeding. The fact that the statutes Further, if a party fails This meets the definition of 25 This issue is decided in Plaintiffs’ favor. 26 B. Proportionate Share of Cleanup Costs 27 To establish a right to equitable contribution, Plaintiffs 28 17 1 also must show that they have paid more than their fair share of 2 the obligation, that is, the cleanup costs. 3 that Plaintiffs have paid all of the cleanup costs and Defendant 4 has paid nothing. 5 Plaintiffs incurred have been reimbursed by the UST Fund. 6 parties stipulated that Plaintiffs have spent $42,237.95 which has 7 not been reimbursed by the UST Fund. The evidence shows However, eighty-five percent of the costs The 8 Plaintiffs argue that Defendant should pay the entire 9 $42,237.95, and all future costs, as its equitable contribution United States District Court For the Northern District of California 10 because the jury concluded that Defendant contaminated the 11 property, and Defendant has done nothing to comply with any cleanup 12 orders. 13 some of the contamination, it could only be responsible for leakage 14 from USTs, and there is no evidence that this amounts to more than 15 eighty-five percent of the expense, which has been reimbursed by 16 the UST Fund. 17 submitted to prove that Plaintiffs are responsible for less than 18 fifteen percent of the contamination, which would be another way to 19 prove that Plaintiffs have paid more than their fair share of the 20 cleanup costs. 21 the Pitcock Release and, thus, are not responsible for any 22 contamination on the property. 23 they are not responsible for any contamination, they have paid 100 24 percent of the cleanup costs over the past twenty years. 25 argue that “the only possible conclusion the Court can reach is 26 that Sullins have paid more than their fair share. 27 above $0.00 is more than Sullins’ fair share.” 28 Defendant responds that, even if it was responsible for Defendant also argues that no evidence has been Plaintiffs reply that they are not responsible for Plaintiffs lament that, although 18 They Any amount Thus, they conclude 1 that Defendant should pay all of the $42,237 and any additional 2 future costs that may be unreimbursed by the UST Fund. 3 Although Plaintiffs may not have caused the Pitcock Release, 4 neither did Defendant. 5 operated the business on the property that required the gasoline 6 that Pitcock delivered to the property. 7 settled their claims against Pitcock and were reimbursed for the 8 damages caused by the Pitcock Release. 9 Defendant, are responsible for the contamination caused by the United States District Court For the Northern District of California 10 11 It occurred while Plaintiffs owned and Furthermore, Plaintiffs Thus, Plaintiffs, and not Pitcock Release. Because the UST Fund reimbursed Plaintiffs for cleaning up the 12 contamination caused by the USTs, which the parties agree is 13 eighty-five percent of the amount Plaintiffs have spent, to prevail 14 on this issue, Plaintiffs must show that the contamination from the 15 USTs was more than eighty-five percent of the total contamination 16 on the property. 17 concede that no evidence of percentage contributions was presented 18 at trial. 19 Plaintiffs have failed to do so. Plaintiffs RT at 710-3-12. Because Plaintiffs have failed to establish by a preponderance 20 of the evidence that the contamination on the property was more 21 than eighty-five percent attributable to the USTs, their claim for 22 equitable contribution fails. 23 in favor of Defendant. Judgment on this claim shall enter 24 CONCLUSION 25 For the foregoing reasons, Defendant’s Rule 50 motion and 26 motion for a hearing are denied. 27 that Plaintiffs failed to show by a preponderance of the evidence 28 The Court finds and concludes 19 1 that the contamination on the property poses a substantial and 2 imminent endangerment to health or the environment. 3 further finds and concludes that Plaintiffs have failed to show by 4 a preponderance of the evidence that they have paid more than their 5 fair share of the joint obligation to clean up the contamination on 6 the property. 7 The Court Judgment shall enter in favor of Defendant on the RCRA and 8 equitable contribution claims. 9 All parties shall bear their own costs of suit. United States District Court For the Northern District of California 10 11 IT IS SO ORDERED. 12 13 Dated: 1/26/2011 CLAUDIA WILKEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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