City of West Sacramento v. R & L Business Management ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 CITY OF WEST SACRAMENTO, No. 2:18-CV-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 13 STATE OF CALIFORNIA, 14 Plaintiffs, MEMORANDUM AND ORDER RE: DEFENDANTS’ DIVISIBILITY 15 v. DEFENSE 16 R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a 17 STOCKTON PLATING, INC., d/b/a CAPITOL PLATING, INC., a/k/a 18 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 19 a dissolved California corporation; ESTATE OF GUS 20 MADSACK, DECEASED; ESTATE OF CHARLES A. SCHOTZ a/k/a SHOTTS, 21 DECEASED; ESTATE OF E. BIRNEY LELAND, DECEASED; ESTATE OF 22 FRANK E. ROSEN, DECEASED; ESTATE OF UNDINE F. ROSEN, DECEASED; 23 ESTATE OF NICK E. SMITH, DECEASED; RICHARD LELAND, an 24 individual; SHARON LELAND, an individual; ESTATE OF LINDA 25 SCHNEIDER, DECEASED; JUDY GUESS, an individual; JEFFREY A. LYON, 26 an individual; GRACE E. LYON, an individual; THE URBAN FARMBOX 27 LLC, a suspended California limited liability company; and 28 DOES 1-50, inclusive, 1 Defendants. 2 3 ----oo0oo---- 4 Plaintiffs City of West Sacramento, California and the 5 People of the State of California (collectively, “plaintiffs”) 6 brought this action to address toxic levels of soil and 7 groundwater resulting from the release of hazardous substances at 8 a property once occupied by a metal plating facility. 9 Plaintiffs’ lawsuit involves the contamination at the property 10 located at 319 3rd Street in West Sacramento, California (the 11 “Site”). This court described much of the factual and procedural 12 background to this lawsuit in its prior orders. (See Docket Nos. 13 18, 33, 44, 63, 115, & 125). 14 This court previously granted plaintiffs’ motion for 15 partial summary judgment and found defendants R and L Business 16 Management (“R&L”), John Clark, and the Estate of Nick E. Smith 17 (collectively, “defendants”) liable under the Comprehensive 18 Environmental Response, Compensation, and Liability Act 19 (“CERCLA”), 42 U.S.C. § 9607(a). (Order at 10 (Docket No. 125).) 20 The court then set an evidentiary hearing to determine whether 21 defendants’ contribution to the pollution at the Site is 22 divisible from the total contamination present at the Site (the 23 “divisibility hearing”). (Docket No. 129.) The divisibility 24 hearing began on August 25, 2020 and lasted three days, 25 concluding on August 27, 2020. 26 At the hearing, defendants offered the testimony of 27 John Clark, the general manager who oversaw R&L’s plating 28 1 operations at the Site, and Richard Leland, the owner of R&L. 2 Defendants also offered the expert testimony of Dr. Adam Love. 3 Plaintiffs offered the testimony of Andrew Reimanis, a hazardous 4 substances engineer at the California Department of Toxic 5 Substances Control (“DTSC”), and Daniel Gallagher, a senior 6 engineering geologist at DTSC. Plaintiffs also offered the 7 expert testimony of Dr. Anne Farr. 8 Based on this testimony and additional evidence 9 submitted by the parties, the court finds that the defendants 10 have not met their burden to prove divisibility and are therefore 11 jointly and severally liable for the harm caused to the Site. 12 This memorandum constitutes the court’s findings of fact and 13 conclusions of law pursuant to Federal Rule of Civil Procedure 14 52(a).1 15 I. Factual Background 16 A. Background on the Site’s Characteristics and Operations 17 The Site at issue is a relatively small parcel-- 18 approximately 80x160 feet, or 0.3 acres--located in a portion of 19 West Sacramento zoned “Mixed-Use Neighborhood Commercial.” 20 (Expert Report Dr. Adam Love, Ex. 3, at 5 (“Love Report”) (Docket 21 No. 180-1)2; Tr. of Evidentiary Hr’g 531:7-9 (“Hr’g Tr.”) (Docket 22 No. 200-202).) The Site is bordered by property containing a 23 firehouse to the north, Third Street to the east, and largely 24 vacant lots to the south and west. (See Love Report at 5.) The 25 1 The court expresses no opinion as to whether or to what extend defendants may offset their liability by the liability of 26 another in a subsequent contribution proceeding under CERCLA 27 section 113. See 42 U.S.C. § 9613(f). 2 All exhibit numbers refer to the parties’ joint exhibit 28 list for the divisibility hearing. 1 Site and the surrounding properties were originally developed on 2 top of imported fill material. (Love Report at 10.) 3 Beginning in the 1930s, the Site was used for 4 residential purposes and then as a bus and automobile repair 5 facility until 1949. (Id.) Between 1949 and 1973, a series of 6 businesses performed vehicle electroplating operations on the 7 Site. (Id.) Operations largely took place in a single facility 8 that abutted the northern and western property lines.3 (See Ex. 9 23). The remainder of the Site consisted of a drainage area in 10 the southwest corner and a driveway where workers would park in 11 the southeast corner. (See id.) 12 Defendant R&L purchased the business operating on the 13 Site, Capitol Plating, in 1973. (Id.) At the time, R&L was 14 incorporated as “Stockton Plating, Inc.”4 (Hr’g Tr. 139:7- 15 141:1.) Stockton Plating continued the same type of 16 electroplating operations on the Site as Capitol Plating, and 17 even retained the business’ name, until 1985. (Id.) From 1985 18 to 1991, defendants used the Site to store bumpers. (Id.) No 19 operations have occurred on the Site since 1991. (Id.) 20 B. Overview of Contamination at the Site 21 Various environmental consulting groups have conducted 22 environmental investigations at the Site since 1986, including 23 defendants’ expert, who collected soil and groundwater data at 24 the Site in 2020 for the purposes of preparing a remedial cost 25 estimate for the Site. (See Love Report; Expert Report of Dr. 26 3 This facility has since been demolished, but the concrete 27 foundation is still present at the Site. (See Ex. 7.) 4 Defendant would later reincorporate as “R and L Business 28 Management” in 1996. 1 Anne Farr, Ex. 1, at 7-16 (“Farr Report”).) Based on these 2 investigations, DTSC has determined that chromium, copper, lead, 3 nickel, and cadmium are present in Site soils at levels that 4 require remediation. (Farr Report at 15.) Samples from 5 monitoring wells and borings also show that groundwater at the 6 Site is contaminated with nickel, copper, chromium, and cadmium, 7 as well as a volatile organic compound (“VOC”) known as 1,2-DCA. 8 (See, e.g., id. at 10.) 9 C. Sources of Nickel, Copper, and Chromium Contamination 10 Electroplating operations at the Site have contributed 11 to the elevated levels and distribution of nickel, copper, and 12 chromium at the Site. (See Farr Report at 16; Love Report at 12- 13 14.) The process of electroplating objects like car bumpers is 14 likely to produce this type contamination because the process is 15 so reliant on liquid solutions containing metal. (See Farr 16 Report at 16.) 17 Both defendants and previous electroplating businesses 18 at the Site primarily plated chrome bumpers. (Id.) The process 19 involved initially stripping away the bumper’s plating down to 20 the bare metal using acid or alkaline solutions. (Id.) Any 21 damaged portions of the bumper were then ground, polished, and 22 straightened in two rooms located on the northeast corner of the 23 Site. (Id.; Hr’g Tr. 110:23-112:1.) Metal previously used to 24 plate the bumpers was released as particulates were ground off, 25 fell through the air, and settled on the ground. (Hr’g Tr. 26 110:23-112:1). Defendants and their predecessors gathered these 27 particulates with a dust collector or swept them up and 28 eventually placed them in a dumpster located in the southwestern 1 portion of the Site. (Hr’g Tr. 77:14-78:11, 134:23-135:4; Ex. 2 23.) 3 Workers then placed the bumpers into tanks in the 4 facility’s plating area that contained specific metal solutions-- 5 first, copper; then, nickel; last, chromium--and applied an 6 electric current while they were submerged. (Love Report at 6; 7 Ex. 23.) A worker would manually lift each bumper by using two 8 hooked rods to leverage it in and out of the tank. (Id.) 9 Workers also lowered the bumpers in and out of tanks containing 10 rinse water, and buffed the bumpers after each stage of the 11 plating operation and the finish coat. (Id.) 12 Due to the height of the tanks, an elevated “duckboard” 13 floor was built in the plating area so the workers could stand in 14 the optimal position to lift and lower bumpers into the metal 15 solutions. (Id. at 7.) The duckboard consisted of two-by-fours 16 with half-inch spacers set in a grid pattern on the floor to 17 create an elevated platform approximately three feet high for the 18 workers to walk on around the tank. (Id.) Because of the space 19 between the two-by-fours, the duckboard permitted fluid falling 20 from above to fall directly onto the concrete floor below. (Id.) 21 “Dragout” releases occurred when plating fluid or rinse water 22 would drip from the bumpers as they were pulled out of one tank 23 and moved into another. (Rebuttal Expert Report of Dr. Farr, Ex. 24 5, at 7-11 (“Farr Rebuttal”).) These releases would not only 25 cause plating fluid or rinse water fluid to fall onto the 26 concrete, they would also cause the duckboard to get slippery and 27 wet. (Id.) Platers would sometimes slip, dropping the bumpers 28 and causing the contents of the tank to splash and fall onto the 1 ground. (Id. at 9.) Releases onto the concrete floor also 2 occurred when plating tanks leaked or holes developed due to 3 normal wear and tear, or when employees dropped the bumpers when 4 trying to move them from one tank to the next. (Id. at 8-9.) 5 Any releases that reached the concrete floor in the 6 plating room would initially flow into a floor drain that 7 connected to a larger sewer system. (Love Report at 7.) When 8 the floor drain was unable to handle the volume of fluid 9 released, the plating fluids would flow out of the building 10 through a hole in the southern wall or through the back door 11 where they would spill out onto the ground outside. (Id.) 12 Indeed, when Clark started as the general manager at the Capitol 13 Plating facility in 1973, he noticed that the ground outside the 14 hole in the wall was stained blue--evidence of releases of 15 liquids from the plating tanks and/or rinse tanks in the plating 16 room. (Hr’g Tr. 49:15-50:12.) 17 Releases of metal plating wastes occurred in three 18 primary source areas. (See Hr’g Tr. 251:7-253:7, 597:25-598:15; 19 Farr Report at 16.) Plating operations released metals through 20 the footprint of the plating room and through the hole in the 21 southern wall of the plating process building into the parking 22 lot area. (Farr Report at 16.) Releases also occurred in the 23 northeastern portion of the Site. (Id.) 24 D. Stockton Plating’s Efforts to Prevent Releases 25 After Stockton Plating arrived at the Site in 1973, the 26 company made several operational and structural changes to try to 27 limit the number and magnitude of releases of plating metals to 28 the subsurface. In 1973, Clark plugged the hole in the southern 1 wall of the plating facility with packed dirt to prevent releases 2 of plating fluid and rinse water from reaching the parking lot 3 area. (Love Report at 7; Hr’g Tr. 56:15-57:5.) Clark testified 4 that he recalled the earthen dam failing “five to ten” times 5 before he decided to replace it with a concrete retaining wall 6 that surrounded the wet plating operations the next year. (Hr’g 7 Tr. 59:14-63:4; Farr Rebuttal at 6.) 8 Between 1973 and 1976, Stockton Plating also installed 9 a “counterflow” plumbing system and restrictor valves in the 10 rinse tanks, reduced overall water usage in the rinse tanks, and 11 installed racks above the plating tanks to reduce the number of 12 dragout and spillover releases from the tanks and pipe rinse 13 water directly into the sewer pump. (Love Report at 14.) 14 II. Legal Standard 15 Liability for potentially responsible parties under 16 CERCLA “is ordinarily joint and several, except in the rare cases 17 where the environmental harm to a site is shown to be divisible.” 18 Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 588 (9th 19 Cir. 2018) (emphasis added); see also Burlington N. & Santa Fe 20 Ry. Co. v. United States, 556 U.S. 599, 614 (2009). The 21 divisibility defense allows CERCLA defendants to avoid joint and 22 several liability by showing “that a reasonable basis for 23 apportionment exists.” Burlington, 556 U.S. at 614. 24 “The divisibility analysis involves two steps.” 25 Pakootas, 905 F.3d at 588. First, the court determines whether 26 the contamination at issue is “theoretically capable of 27 apportionment.” Id. “Second, if the harm is theoretically 28 capable of apportionment, the fact-finder determines whether the 1 record provides a ‘reasonable basis’ on which to apportion 2 liability, which is purely a question of fact.” Id. If the 3 CERCLA defendant carries its burden, the court will apportion 4 liability among the responsible parties so that “each is subject 5 to liability only for the portion of the total harm that he has 6 himself caused.” See id. (quoting United States v. Chem-Dyne 7 Corp., 572 F. Supp. 802, 810 (S.D. Ohio 1983)) (alteration 8 omitted). Otherwise, the responsible parties will be held 9 jointly and severally liable so that “each is subject to 10 liability for the entire harm.” Id. (quoting Chem-Dyne, 572 F. 11 Supp. at 810). 12 “[T]he defendant asserting the divisibility defense 13 bears the burden of proof” as to both elements of the defense. 14 Pakootas, 905 F.3d at 589; see also Burlington, 556 U.S. at 614. 15 “This burden is ‘substantial’ because the divisibility analysis 16 is ‘intensely factual.’” Pakootas, 905 F.3d at 598 (quoting 17 United States v. Alcan Aluminum Corp., 964 F.2d 252, 269 (3d Cir. 18 1992)). “The necessary showing requires a ‘fact-intensive, site- 19 specific’ assessment,” id. at 589 (quoting PCS Nitrogen Inc. v. 20 Ashley II of Charleston LLC, 714 F.3d 161, 182 (4th Cir. 2013)), 21 “generating ‘concrete and specific’ evidence,” id., 905 F.3d at 22 589 (quoting United States v. Hercules, Inc., 247 F.3d 706, 718 23 (8th Cir. 2001)). While absolute certainty is not required, “the 24 defendant must show by a preponderance of the evidence--including 25 all logical inferences, assumptions, and approximations--that 26 there is a reasonable basis on which to apportion the liability 27 for a divisible harm.” Id. 28 Apportionment under the divisibility defense is 1 “conceptually distinct from contribution or allocation of 2 damages.” Hercules, 247 F.3d at 718. In a CERCLA §113(f) 3 contribution action, during “the allocation phase, the only 4 question is the extent to which a defendant’s liability may be 5 offset by the liability of another; the inquiry at this stage is 6 an equitable one and courts generally take into account the so- 7 called ‘Gore factors.’” Id.; see also 42 U.S.C. § 9613(f) 8 (providing that a court “may allocate response costs among liable 9 parties using such equitable factors as the court determines are 10 appropriate”) (emphasis added). “The divisibility of harm 11 inquiry, by contrast, is guided not by equity--specifically, not 12 by the Gore factors--but by principles of causation alone.” 13 Hercules, 247 F.3d at 718; see United States v. Rohm Haas Co., 2 14 F.3d 1265, 1280–81 (3d Cir. 1993); APL Co. Pte. Ltd. v. Kemira 15 Water Sols., Inc., 999 F. Supp. 2d 590, 624 (S.D.N.Y. 2014) (“The 16 divisibility doctrine is not a means by which courts allocate the 17 costs incurred in a cleanup and response operation among PRPs 18 [potentially responsible parties] on an equitable basis (i.e., on 19 the basis of relative fault).”). Instead, “equitable 20 considerations play no role in the apportionment analysis[.]” 21 PCS Nitrogen, 714 F.3d at 182 (quoting Burlington, 556 U.S. at 22 615 n.9). 23 Because courts must not consider equitable factors, 24 “where causation is unclear, divisibility is not an opportunity 25 for courts to ‘split the difference’ in an attempt to achieve 26 equity.” Hercules, 247 F.3d at 718. “Rather, ‘[i]f they are in 27 doubt, district courts should not settle on a compromise amount 28 that they think best approximates the relative responsibility of 1 the parties.’ In such circumstances, courts lacking a reasonable 2 basis for dividing causation should avoid apportionment 3 altogether by imposing joint and several liability.” Id. at 718– 4 19 (citations omitted). 5 III. Discussion 6 A. Whether the Contamination Is Theoretically Capable of Apportionment 7 8 Whether the environmental harm is theoretically capable 9 of apportionment “is primarily a question of law.” Pakootas, 905 10 F.3d at 588. “Underlying this question, however, are certain 11 embedded factual questions that must necessarily be answered, 12 such as ‘what type of pollution is at issue, who contributed to 13 that pollution, how the pollutant presents itself in the 14 environment after discharge, and similar questions.’” Id. 15 (quoting NCR Corp., 688 F.3d at 838). This is because “a court 16 cannot say whether a harm ‘is, by nature, too unified for 17 apportionment’ without knowing certain details about the ‘nature’ 18 of the harm.” Pakootas, 905 F.3d at 591. “As one commentator 19 has explained: ‘Even if a party’s waste stream can be separately 20 accounted for, its effect on the site and on other parties’ 21 wastes at the site must also be taken into account.’” Id. 22 (quoting William C. Tucker, All Is Number: Mathematics, 23 Divisibility and Apportionment Under Burlington Northern, 22 24 Fordham Envtl. L. Rev. 311, 316 (2011)). “That is, ‘a defendant 25 must take into account a number of factors relating not just to 26 the contribution of a particular defendant to the harm, but also 27 to the effect of that defendant’s waste on the environment.’” 28 Id. “Those factors generally include when the pollution was 1 discharged to a site, where the pollutants are found, how the 2 pollutants are presented in the environment, and what are the 3 substances’ chemical and physical properties.” Id. “Chief among 4 the relevant properties are ‘the relative toxicity, migratory 5 potential, degree of migration, and synergistic capacities of the 6 hazardous substances at the site.’” Id. (quoting United States 7 v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir. 1993)). 8 Moreover, “[f]or the purpose of apportioning CERCLA 9 liability, the relevant ‘harm’ is the entirety of contamination 10 at a site that has caused or foreseeably could cause a party to 11 incur response costs, suffer natural resource damages, or sustain 12 other types of damages cognizable under section 107(a)(4).” Id. 13 at 592. The defendant asserting the divisibility defense must 14 therefore produce evidence showing divisibility of the entirety 15 of contamination at a site, the harm caused by its wastes 16 combined with all other pollution, not just the harm caused by 17 its wastes alone. Id. at 590–91. 18 Finally, the mixing of pollutants raises a rebuttable 19 presumption of indivisible harm. Id. at 592–93. This 20 presumption arises for pollutants that are physically 21 interspersed, not just those that are chemically commingled. Id. 22 at 593. “Even if pollutants do not chemically interact, their 23 physical aggregation can cause disproportionate harm that is not 24 linearly correlated with the amount of pollution attributable to 25 each source.” Id. In other words, “the fact that a single 26 generator’s waste would not in itself justify a response is 27 irrelevant . . . as this would permit a generator to escape 28 liability where the amount of harm it engendered to the 1 environment was minimal, though it was significant when added to 2 other generators’ waste.” Id. (quoting Alcan, 964 F.2d at 264). 3 In this case, defendants’ expert, Dr. Love, seeks to 4 determine defendants’ contribution to the contamination at the 5 site by dividing the contaminants up three ways: geographically, 6 chemically, and volumetrically. (See Hr’g Tr. 250:13-251:6.) He 7 then proposes a remedial plan that shows three distinct areas of 8 contamination, corresponding to the three primary source areas of 9 the releases at the Site. (See Hr’g Tr. 250:13-253:7.) Within 10 each of the three geographic areas, Dr. Love first looks to the 11 chemical nature of the contamination, concluding that because 12 defendants were not responsible for any lead releases at the 13 property, the plating metal contamination (i.e., nickel, copper, 14 and chromium) is divisible from the lead contamination. (See id. 15 at 258:1-24.) 16 Dr. Love then estimates the portion of the plating 17 metal contamination that the defendants contributed, using time 18 spent at the Site as a proxy for volume and considering the 19 improvements to the plating equipment and operations that 20 Stockton Plating made after arriving on the Site. (See id. at 21 259:17-262:2.) Based on these estimates, Dr. Love calculates 22 that defendants should only be liable for 3.1% of the costs laid 23 out in his plan to remedy the Site’s soil and 3.7% of the costs 24 to remedy the Site’s groundwater. (See id. at 296:3-24; Love 25 Report at 22-23.) 26 A fundamental problem with Dr. Love’s analysis is that 27 it fails to take into account the impact of the ongoing 28 investigation by the DTSC. Before any remedial plan can be 1 implemented it must be approved by the DTSC. Michael Gallagher 2 is the DTSC hazardous substance engineer tasked with 3 investigating the Site and recommending a remedial plan. He 4 testified at the hearing that the subsurface contamination at the 5 Site still has not been fully delineated. (See id. at 466:14-23, 6 472:10-473:17.) Based on his investigation of the Site to date, 7 Gallagher concludes that further sampling of soil and groundwater 8 beyond the property line to the southeast and the northeast is 9 needed to determine how far vertically and laterally chromium, 10 copper, nickel, and lead extend beyond the Site’s property line. 11 (Id. at 489:23-490:3; Ex. 38 at 5.) 12 Gallagher also testified that it is impossible to know 13 whether Site groundwater contamination has been adequately 14 characterized, since reliable groundwater data has not been 15 collected since 2004 and the samples taken by Dr. Love were 16 biased. (Hr’g Tr. 488:9-489:15, 490:16-25; Ex. 38 at 5.) 17 Because the full scope of the contaminant plume at the site is 18 still unknown, Gallagher has recommended to DTSC that it wait to 19 implement a remedial plan for the Site until additional 20 delineation of the contamination can be performed. (Hr’g Tr. 21 473:5-17; Ex. 38 at 5.) DTSC adopted Gallagher’s recommendation 22 when it issued its imminent and substantial endangerment order. 23 (Hr’g Tr. 493:9-494:7.) 24 Thus, because Gallagher and (by extension, DTSC) is not 25 yet willing to approve a remedial plan for the Site, a percentage 26 cannot be accurate if the whole from which it is measured is not 27 known. See Pakootas, 905 F.3d at 590-91 (“As a result, Teck was 28 required to produce evidence showing divisibility of the entire 1 harm caused by Teck’s wastes combined with all other River 2 pollution--not just the harm from sources of Teck’s six metals 3 alone.” (emphasis added)). Because the nature and extent of the 4 contamination at the Site have still not been fully defined, it 5 is entirely possible that further harm caused by Stockton Plating 6 beyond the property line or within it will be discovered. 7 Granting defendants’ divisibility request based on Dr. Love’s 8 analysis would leave the remaining defendants in the case holding 9 the bag for additional contamination or harm that was in fact 10 caused by Stockton Plating. 11 Considering all the evidence offered at the hearing, 12 the court is not convinced that Dr. Love’s divisibility analysis 13 fully defines the contamination at the Site that will require 14 remediation. Contamination that originated at the Site but has 15 since spread beyond the property line is part of the “relevant 16 harm” because it is foreseeable that it could cause a party to 17 incur response costs under CERCLA to remove it. Pakootas, 905 18 F.3d at 591. But testimony and reports by plaintiffs’ expert, 19 Dr. Farr, as well as engineers at DTSC--the state regulatory 20 agency that will eventually have to review and approve a plan for 21 cleanup of the Site--indicate that the nature and extent of the 22 contamination at the Site, including how far the contamination 23 extends beyond the property line, has yet to be determined. (See 24 Hr’g Tr. 549:11-551:21.) Accordingly, Dr. Love’s analysis fails 25 to satisfy defendants’ burden of showing that the contamination 26 is theoretically capable of apportionment. 27 The trial court is given broad latitude in judging the 28 credibility of a witness and determining the weight to be given 1 to his testimony. See Young Ah Chor v. Dulles, 270 F.2d 338, 341 2 (9th Cir. 1959). Based upon the court’s perception of the 3 witnesses at the evidentiary hearing and discrepancies between 4 Dr. Love’s testimony and the evidence presented, the court finds 5 the testimony of Gallagher and Dr. Farr to be more credible than 6 that of Dr. Love. 7 Dr. Farr agrees that the full scope of the 8 contamination beyond the property lines to the southeast and 9 northeast remains undefined. She testified that significant data 10 gaps remain for copper, chromium, and nickel soil concentrations 11 extending beyond the northeast and southeast property lines of 12 the Site, despite the amount of sampling that has taken place 13 over the years, including by Dr. Love. (See Hr’g Tr. 473:5-17, 14 476:2-15; Ex. 2, fig.s 1, 5, 6.) Similar data gaps exist with 15 respect to copper, nickel, and chromium concentrations in the 16 groundwater extending beyond the property line in all directions. 17 (See id., fig.s 7, 8, 9.) 18 Dr. Love also does not adequately account for the 19 uncertainty that remains surrounding the nature and extent of the 20 contamination at the Site. He proposes a soil remedial scheme 21 that divides the Site into fourteen discrete “excavation areas,” 22 where the soil would be excavated and removed in volumes 23 determined according to the extent of metal contamination at that 24 location. (See Hr’g Tr. 272:13-19; Love Report at 16-18; Ex. 4, 25 fig. 12.) None of the excavation areas proposed for the 26 northeast corner of the Site extend beyond the property line, 27 despite the evidence showing that the contamination likely 28 spreads further out onto adjacent properties. (Compare Ex. 4, 1 fig. 12 with Ex. 2, fig.s 1, 5, 6.) And though the proposed 2 excavation area for the southeast corner of the Site does extend 3 onto the adjacent property, Dr. Love conceded on cross- 4 examination that additional investigation of the southeast corner 5 of the Site is still necessary to determine exactly how far 6 remediation there would need to extend. (See Hr’g Tr. 332:19- 7 333:4.) Absent an evaluation of the contamination as a whole, 8 the court cannot conclude that the harm is divisible. See 9 Pakootas, 905 F. 3d at 594. 10 Moreover, Dr. Love fails to evaluate the contamination 11 beyond Stockton Plating’s contribution to the pollution or the 12 additional impacts that mixing pollutants may have had, even in 13 the portions of the Site where the experts agree that the nature 14 and extent of the contamination is well-understood. (See Hr’g 15 Tr. 473:5-17; 476:2-15.) For instance, Dr. Love’s groundwater 16 analysis does not adequately consider the impact of 1,2 DCA in 17 the groundwater. He acknowledges the presence of 1,2 DCA at 18 unsafe levels, but his analysis does not provide enough 19 information to adequately assess current groundwater conditions 20 at the Site because it does not provide adequate field sampling 21 information for the data upon which the analysis relies or 22 indicate whether sampling wells were properly re-developed prior 23 to sample collection. (Farr Report at 19-20; Ex. 38 at 5.) 24 Dr. Love also does not adequately evaluate the impact 25 of lead in the soil. He concludes that the heightened lead 26 levels observed at the Site are due to fill material upon which 27 the Site was developed, not Stockton Plating’s operations. (Love 28 Report at 10-11; Farr Rebuttal at 3-4.) Though plaintiff’s 1 expert disputes this conclusion, (see Farr Rebuttal at 3-4), even 2 if the court assumes that Dr. Love is correct, his analysis 3 concedes that the lead is commingled and collocated with other 4 contaminants in the soil. (See Love Report at 23; Hr’g Tr. 5 273:24-274:7.) This type of commingling raises a rebuttable 6 presumption of indivisible harm. Pakootas, 905 F. 3d at 594. 7 Yet Dr. Love makes no effort to rebut this presumption by showing 8 that lead does not chemically or physically interact with other 9 contaminants in the soil. Id.; see also id. at 590-91 (“As a 10 result, Teck was required to produce evidence showing 11 divisibility of the entire harm caused by Teck’s wastes combined 12 with all other River pollution--not just the harm from sources of 13 Teck’s six metals alone.”) 14 Dr. Love also dismisses the additional effects that 15 Stockton Plating’s releases of plating metals may have had 16 through chemical or physical reactions with the plating metals or 17 other contaminants already present in the soil (often referred to 18 as “synergistic effects”). (See Farr Rebuttal at 12-13.) He 19 acknowledges that the plating metals released by Stockton Plating 20 are commingled in the soil with plating metals released by prior 21 operators, but nevertheless concludes that the metals have not 22 produced any synergistic effects because they do not react 23 chemically with one another. (See Hr’g Tr. 231:15-232:19.) In 24 Pakootas, the court rejected a similar argument by the defendant: 25 “[e]ven if pollutants do not chemically interact, their physical 26 aggregation can cause disproportionate harm that is not linearly 27 correlated with the amount of pollution attributable to each 28 source.” Pakootas, 905 F.3d at 593. Thus, even if Dr. Love is 1 correct in asserting that Stockton Plating’s plating metals could 2 not have chemically interacted with metals released by prior 3 operators, his analysis is insufficient because it does not 4 address the potential exacerbating effects of physical 5 commingling between Stockton Plating’s releases and plating 6 metals already present in the soil. See id. 7 The court is persuaded by Dr. Farr’s Rebuttal Report, 8 which points out that Dr. Love overlooked the potential for 9 releases from Stockton Plating’s facility to drive metals already 10 in the soil deeper into the subsurface and into groundwater as 11 concentrations near the surface reached equilibrium. (See Farr 12 Rebuttal at 12-13.) The court therefore cannot conclude that the 13 impact of Stockton Plating’s releases of additional copper, 14 nickel, and chromium into the soil or groundwater was linear. 15 See Pakootas, 905 F.3d at 593. 16 For these reasons, defendants have not established that 17 the entirety of the contamination is theoretically capable of 18 apportionment. 19 B. Whether a Reasonable Basis for Apportionment Exists 20 Even if the contamination were theoretically capable of 21 apportionment, the defendants’ claim of divisibility would still 22 fail because they have not put forward a reasonable basis for 23 apportionment. In the second step of the divisibility analysis, 24 a CERCLA defendant must show that “there is a reasonable basis 25 for determining the contribution of each cause to a single harm.” 26 Burlington, 556 U.S. at 614 (quoting Restatement (Second) of 27 Torts § 433A(1)(b)); Pakootas, 905 F.3d at 595. “What is 28 reasonable in one case may not be in another, so apportionment 1 methods ‘vary tremendously depending on the facts and 2 circumstances of each case.’” Pakootas, 905 F.3d at 595 (quoting 3 Hercules, 247 F.3d at 717). The basis for apportionment may rely 4 on the “simplest of considerations,” most commonly volumetric, 5 chronological, or geographic factors. Burlington, 556 U.S. at 6 617–18; Pakootas, 905 F.3d at 595. “The only requirement is that 7 the record must support a ‘reasonable assumption that the 8 respective harm done is proportionate to’ the factor chosen to 9 approximate a party’s responsibility.” Pakootas, 905 F.3d at 595 10 (quoting Restatement (Second) of Torts § 433A cmt. d). 11 Here, defendants argue that amount of contamination 12 attributable to defendants can be apportioned chemically, 13 geographically, and volumetrically. For the following reasons, 14 none of these options provides a reasonable basis for 15 apportionment. 16 1. Chemical Apportionment 17 Dr. Love concludes that soil contaminants at the Site 18 are readily distinguishable as metals originating from plating 19 operations (copper, nickel, and chromium) and metals originating 20 from fill material (lead). (See Love Report at 20.) In other 21 words, because Dr. Love concludes that all lead at the Site 22 originated from fill material, he apportions no responsibility or 23 cost for remediation to defendants for soil that contains only 24 lead, and apportions 50% responsibility for portions of soil that 25 contain lead and another metal originating from plating 26 operations. (See id. at 23.) 27 Dr. Love’s assumption that all lead at the Site must 28 originate with fill material is not based on site-specific data. 1 Rather it is based only on shallow soil samples collected at the 2 Firehouse Property north of the Site. (Farr Rebuttal at 3.) Dr. 3 Love provides no analysis to determine whether the elevated lead 4 concentrations in these shallow soil samples were also detected 5 in fill soils. (Id.) And, crucially, his analysis fails to 6 account for sampling in 2008 that failed to detect lead at 7 elevated concentrations in fill soils at the Site and to the east 8 of the Site. (Id. at 4.) If anything, the evidence tends to 9 show that one of the primary source areas for lead was the 10 parking lot located in the southeastern corner of the Site. 11 (Id.) The elevated lead concentrations in this portion of the 12 Site are commingled and collocated with elevated chromium, 13 copper, and nickel, suggesting that Stockton Plating could have 14 been the source of at least some of the lead contaminants found 15 in the soil. (See id.) It is therefore not reasonable to assume 16 that defendant contributed 0% of the harm to soil contaminated 17 only with lead or even 50% of the harm to soil contaminated with 18 lead and one other metal. See Burlington, 556 U.S. at 617–18; 19 Pakootas, 905 F.3d at 595. 20 2. Geographic Apportionment 21 Dr. Love’s analysis uses geographic location to try to 22 apportion fault by identifying three distinct areas of the Site 23 where plating metal contamination can be found: the plating 24 facility footprint, the southern rinse water drainage area, and 25 the northeast dumping area. (See Love Report at 19.) According 26 to the analysis, defendants cannot be held responsible for any of 27 the contamination in the northeast dumping area because all the 28 contaminants found there originate from fill material or dumping 1 of plating metals that occurred prior to Stockton Plating’s 2 operations at the Site. (See id. at 20.) 3 This attempt to apportion fault geographically ignores 4 evidence that Stockton Plating likely contributed to 5 contamination in the northeast corner of the Site. Stockton 6 Plating’s operations in the northeast corner of the Site included 7 grinding, straightening, and polishing chrome-plated bumpers. 8 (Hr’g Tr. 110:23-112:19; 115:22-116:17.) This process resulted 9 in releases of copper, nickel, and chromium that fell through the 10 air and settled onto the ground. (Id.) Though these operations 11 took place indoors and above a concrete floor, two fires in 1973 12 and 1985 could have resulted in the release of particles outside 13 the building either directly or via firefighters’ efforts to 14 douse the flames. (Id. at 161:18-162:22.) A major rain event in 15 the Sacramento area in 1986, after defendant had ceased 16 operations but before it had completely removed its chemicals and 17 equipment from the property, could have also spread metal 18 particles to the subsurface. (See Ex. 52.) In light of the 19 evidence of additional ways that releases of plating metals from 20 the northeast corner of the facility could have made their way to 21 the subsurface, the court cannot find that the record reasonably 22 supports an assumption that defendants are not responsible for 23 any of the harm to the northeastern portion of the Site. See 24 Pakootas, 905 F.3d at 595. 25 In addition, Dr. Love gives the impression that the 26 geographic areas he defines would remain distinct throughout the 27 process of remediation. (See Ex. 4, fig. 12.) But as Dr. Love 28 conceded on cross-examination, the excavation areas his analysis 1 proposes would not remain separate and distinct once excavation 2 began. (See Hr’g Tr. 342:1-343:20.) The court is persuaded by 3 Dr. Farr’s testimony and rebuttal report, which point out that 4 repeated releases over a period of years at a site this small are 5 likely to form “one big blob” in the soil. (See Hr’g Tr. 531:23- 6 532:7, 625:3-626:24; Farr Rebuttal at 15.) It is simply not 7 possible in this case to carve up the Site geographically into 8 separate and distinct portions that reflect the defendants’ 9 “contribution . . . to a single harm.” Burlington, 556 U.S. at 10 614 (quoting Restatement (Second) of Torts § 433A(1)(b)). There 11 is therefore no reasonable basis upon which to apportion the harm 12 geographically. 13 3. Volumetric Apportionment 14 Finally, Dr. Love attempts to apportion defendants’ 15 contribution to the harm at the Site within the geographically 16 and chemically divisible areas in his analysis using a volumetric 17 approach. (See Love Report at 20-22.) Essentially, Dr. Love 18 calculates the relative amount of plating metals within the three 19 defined portions of the Site that Stockton Plating’s operations 20 were responsible for, as compared to prior operators at the Site. 21 (See id.) 22 To distinguish between releases attributable to 23 defendant and releases attributable to prior operators at the 24 Site, Dr. Love argues that the measures taken by Stockton Plating 25 shortly after it took over operations at the Site eliminated the 26 possibility of releases occurring through the hole of the 27 southern wall of the plating facility after 1974 or through the 28 footprint of the plating room after 1975. (See Love Report at 1 14.) He also concludes that any releases that occurred as 2 Stockton Plating was implementing these operational changes were 3 “minimal and incremental” compared to prior plating operations at 4 the Site. (See id. at 14-15.) Because neither defendants nor 5 prior operators kept adequate records to determine the specific 6 volume of plating fluids used at the Site, Dr. Love’s analysis 7 uses time on the Site as a proxy for volume. (Love Report at 8 20.) Resting on the assumption that “the production volume of 9 the plating operations was fairly similar throughout the history 10 of Site operations,” the analysis calculates that defendants only 11 contributed 3.1% of the harm to Site soil and 3.7% of the harm to 12 Site groundwater. (Love Report at 20, 22-23.) 13 The court cannot accept Dr. Love’s attempt to apportion 14 fault volumetrically because his analysis relies on fundamentally 15 flawed assumptions and reaches conclusions that are belied by 16 evidence concerning Stockton Plating’s operations and the nature 17 of the contamination at the Site. See Burlington, 556 U.S. at 18 617–18; Pakootas, 905 F.3d at 595. Dr. Love opines that any 19 discharges by the defendant prior to 1974 were minimal or 20 incremental, but his analysis does not mention the “five to ten” 21 known releases of plating metals that Stockton Plating’s general 22 manager admitted occurred before he replaced the earthen dam with 23 the concrete retaining wall. (Hr’g Tr. 57:16-25.) Dr. Love also 24 provides no analysis or estimate of the volume of waste or 25 contaminant mass released through the hole in the southern wall 26 of the plating facility as a result of these known discharges. 27 (Farr Rebuttal at 6.) 28 Dr. Love also assumes that the concrete retaining wall 1 prevented any liquid from migrating out of the plating area. 2 (Love Report at 14.) While the wall likely reduced the amount of 3 releases that made their way outside the plating area, the court 4 is not convinced that it eliminated the risk entirely. (See Farr 5 Rebuttal at 6.) Dr. Farr’s testimony confirms that the wall was 6 not designed to be impermeable to liquids. (Hr’g Tr. 534:14- 7 535:4.) Site inspections revealed cracks and erosion of the 8 concrete retaining wall as well as mineral discoloration, 9 indicating that liquids did in fact migrate through the concrete 10 wall during Stockton Plating’s operations after 1974. (Farr 11 Rebuttal at 7.) Because the opening to the sewer was located 12 within the bounds of the retaining wall, any fluid that made it 13 beyond the retaining wall would likely have been released onto 14 the land south of the plating facility. (Id.) 15 Dr. Love also assumes that Stockton Plating’s 16 installation of racks above the plating tanks and improvements to 17 the rinse tanks’ pipes eliminated the potential for releases to 18 occur from the plating room after 1975. (Love Report at 14.) 19 This is contrary to testimony by Clark that the floor of the 20 plating room would still get wet as a result of plating 21 operations even after Stockton Plating installed the counterflow 22 and drainpipe systems.5 (Hr’g Tr. 119:22-120:4.) 23 24 5 Dr. Farr’s rebuttal report also relied on deposition testimony by Stockton Plating’s own officers and owners 25 indicating that plating operations continued to cause discharges of plating liquids and rinse water onto the concrete floor after 26 Stockton Plating’s improvements were put into place. (Farr 27 Rebuttal at 7-11.) Deposition testimony by Leland specifically showed that dragout releases continued to occur all the way up 28 until plating operations at the Site ceased in 1985. (Id.) 1 Even if Stockton Plating’s improvements to its plating 2 equipment reduced the frequency with which releases occurred, it 3 strains credulity to believe that they eliminated the risk 4 completely. (Id. at 9-10.) And, contrary to Dr. Love’s 5 assumption, a release onto the concrete floor or directly into 6 the sewer system would not necessarily prevent the plating metal 7 from reaching the subsurface. Neither the concrete slab nor the 8 sewer system was completely impermeable to liquids; releases 9 therefore could have made their way through the concrete slab-- 10 especially if there were joints or fractures in the floor--or 11 through joints and cracks in the sewer lines. (Id. at 11-12; 12 Hr’g Tr. 534:14-535:4.) 13 Finally, Dr. Love’s entire volumetric analysis rests on 14 the assumption that the production volume of plating operations 15 at the Site remained relatively constant from 1949 to 1975. But 16 Clark and Leland’s testimony tends to establish that business 17 increased during Stockton Plating’s time at the Site. (Hr’g Tr. 18 73:15-25, 99:19-101:21.) Stockton Plating added a second 1,250- 19 gallon copper tank to the premises that allowed workers to plate 20 two bumpers simultaneously, and implemented efficiency 21 improvements that allowed the Site to process more bumpers each 22 shift. (Id.) Dr. Farr agreed that changes in the facility’s 23 footprint indicated that production at the facility was likely 24 increasing over time. (Hr’g Tr. 539:24-540:17, 561:8-19; Farr 25 Rebuttal at 14-18.) While some evidence indicates that Stockton 26 Plating pursued increased “finished bumpers” business in the late 27 1970s that would have had little to no potential for releases of 28 plating metals, the weight of the evidence--much of it provided 1 by defendants’ own managers and owners--indicates that operations 2 that carried a risk of releases increased over time at the Site. 3 Dr. Love’s assumption that production stayed relatively constant 4 was therefore unreasonable. See Pakootas, 905 F.3d at 595 5 (quoting Hercules, 247 F.3d at 717). 6 In summary, to accept Dr. Love’s theory of volumetric 7 apportionment, the court would have to (1) accept that the memory 8 of Stockton Plating’s general manager of events that occurred 9 almost 50 years ago is accurate and that there were only five to 10 ten releases of plating fluids at the Site in 1973, (2) assume 11 that these releases were de minimis, and (3) assume that the 12 structural and operational improvements defendants implemented 13 over the next two years prevented any releases of plating fluids 14 from reaching the subsurface, all while assuming, contrary to the 15 evidence, that operations at the Site remained relatively 16 constant over time. 17 Defendants essentially ask the court to stack 18 assumption on top of assumption to conclude that they should be 19 held liable for exactly 3.1% of the harm to Site soil and exactly 20 3.7% of the harm to Site groundwater. (See Love Report at 20, 21 22-23.) Because these assumptions run counter to the weight of 22 the evidence, defendants have not met the “substantial” burden of 23 showing a reasonable basis for determining their contribution to 24 the overall harm at the Site. Pakootas, 905 F.3d at 598 (quoting 25 Alcan, 964 F.2d at 269). 26 IT IS THEREFORE ORDERED that the defendants’ request 27 for a finding of divisibility be, and the same hereby is, DENIED. 28 The court hereby finds and declares as follows: QOoe 6.4008 VEY SUEY NRO ET □□ POR Va te AY OU VI CO 1 1. Defendants have not met their burden of establishing 2 that the contamination at the Site is theoretically 3 capable of apportionment. 4 2. Even if the contamination were theoretically capable of 5 apportionment, defendants have not met their burden of 6 establishing that there is a reasonable basis by which 7 to determine their contribution to the overall harm. 8 3. The CERCLA liability of Defendants R&L, John Clark, and 9 the Estate of Nick E. Smith is not divisible from the 10 total contamination present at the Site. 11 4, Defendants R&L, John Clark, and the Estate of Nick E. 12 Smith are therefore jointly and severally liable for 13 the CERCLA violations that have occurred at the Site. 14 5. The court expresses no opinion as to whether or to what 15 extent defendants may offset their liability by the 16 liability of another in a subsequent contribution 17 proceeding under CERCLA section 113. 18 19 | Dated: September 16, 2020 he ble 7H. fant. t<-—- 20 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 28