City of West Sacramento v. R & L Business Management ( 2021 )

Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 1 of 97 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CITY OF WEST SACRAMENTO, Case No. 2:18-cv-00900-WBS-JDP 11 CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, STIPULATED JUDGMENT 12 Plaintiffs, 13 v. 14 R AND L BUSINESS MANAGEMENT, a 15 California corporation, f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL 16 PLATING, INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; 17 CAPITOL PLATING, INC., a dissolved California corporation; et al., 18 Defendants. 19 20 AND RELATED CLAIMS. 21 22 23 Plaintiffs CITY OF WEST SACRAMENTO, CALIFORNIA (the “City”) and PEOPLE OF 24 THE STATE OF CALIFORNIA (the “People”) (collectively the “Plaintiffs” or “the City and the 25 People”) and Defendants R AND L BUSINESS MANAGEMENT, formerly known as Stockton 26 Plating, Inc. (“R&L”), JOHN CLARK (“Clark”), and ESTATE OF NICK SMITH, DECEASED 27 (“Estate of Smith”), (collectively, “Defendants”) (Plaintiffs and Defendants collectively, 28 “Parties”) have agreed to resolve the remaining issues between them in this action and have STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 2 of 97 1 agreed to entry by the Court of this Stipulated Judgment. 2 THEREFORE, pursuant to the stipulation of and on the joint motion of the Parties, it is 3 hereby ORDERED, ADJUDGED, AND DECREED as follows: 4 Plaintiff the City filed suit alleging claims under the Resource Conservation & Recovery 5 Act (“RCRA”) § 7002(a)(1)(B), 42 U.S.C. § 6972, the Comprehensive Environmental Response, 6 Compensation & Liability Act (“CERCLA”) § 107(a), 42 U.S.C. § 9607(a), the Gatto Act, Cal. 7 Health & Saf. Code §§ 25403.1, 25403.5, the Porter-Cologne Water Quality Control Act (“Porter- 8 Cologne Act”), Cal. Wat. Code § 13304(c), statutory indemnity pursuant to the Carpenter- 9 Presley-Tanner Hazardous Substance Account Act (“HSAA”), Cal. Health & Saf. Code § 10 26363(d), and declaratory relief under CERCLA § 113(g)(2), 42 U.S.C. § 9613(g)(2), and the 11 Declaratory Judgment Act, 28 U.S.C. § 2201.1 Plaintiffs also allege claims for abatement of a 12 public nuisance pursuant to Cal. Civ. Code §§ 3479, 3480, 3483, 3491(2) and Cal. Civ. Proc. 13 Code § 731. Former defendants Richard Leland and Sharon Leland (now deceased) were 14 dismissed from the case following motions pursuant Fed. R. Civ. P. 12(b)(6) which the Court 15 granted. (ECF Nos. 18, 44.) The Third Amended Complaint (ECF No. 45) is Plaintiffs’ 16 operative complaint. 17 Plaintiffs’ suit relates to contamination at and emanating from a 0.3 acre parcel of real 18 estate located at 319 3rd Street, West Sacramento, California, identified by Assessor’s Parcel 19 Number 010-371-03-01 (the “Property” and the entire area of contamination at and emanating 20 from the Property is referred to as the “Site”). 21 Plaintiffs filed a motion for partial summary judgment on the issue of liability on the 22 RCRA, CERCLA, Gatto Act, public nuisance, and declaratory relief claims against Defendants. 23 The Court granted Plaintiffs’ motion in part and denied it in part. The Court’s ruling and analysis 24 are set forth in its order (ECF No. 125), which is attached hereto as Exhibit A and incorporated 25 herein by reference as though stated in full. 26 1 27 The City voluntarily dismissed its claims for ultrahazardous activity and trespass. In addition, the City and the People voluntarily dismissed their prayer for damages on their public nuisance claim. 28 -2- 2:18-cv-00900-WBS-JDP STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 3 of 97 1 The Court then held an evidentiary hearing on Defendants’ divisibility defense to joint and 2 several liability under CERCLA. After that hearing, the Court found that Defendants had not met 3 their burden to prove that the contamination was divisible and that Defendants were therefore 4 jointly and severally liable for the contamination at the Site. The Court’s ruling and analysis are 5 set forth in its order (ECF No. 203), which is attached hereto as Exhibit B and incorporated herein 6 by reference as though stated in full. 7 Plaintiffs then filed a second motion for partial summary judgment against Defendants. 8 With that motion, the City sought summary judgment as to liability on its Gatto Act claim against 9 R&L and Estate of Smith and on its Porter-Cologne Act, public nuisance, HSAA, and declaratory 10 relief claims against Defendants, and the People sought summary judgment as to liability on their 11 sole cause of action―the public nuisance claim―against Defendants. The Court granted 12 Plaintiffs’ motion in part and denied it in part. The Court’s ruling and analysis are set forth in its 13 orders (ECF Nos. 211 and 225), which are attached hereto as Exhibits C and D and incorporated 14 herein by reference as though stated in full. 15 The Court subsequently entered an Amended Pretrial Order, which set out the issues left to 16 be tried: the element of causation on the City’s Porter-Cologne Act claim and Plaintiffs’ public 17 nuisance claims against Defendants; the imminent and substantial endangerment element on the 18 City’s RCRA claim against R&L and Estate of Smith; the amount of response costs that the City 19 is entitled to recover from Defendants under CERCLA, the HSAA, the Porter-Cologne Act, and 20 the Gatto Act; and the form of injunctive relief, if any, against Defendants that Plaintiffs may be 21 entitled to under California public nuisance law and that the City may be entitled to under RCRA 22 and the Gatto Act. The Court’s order (ECF No. 252) is attached hereto as Exhibit E and 23 incorporated herein by reference as though stated in full. 24 To avoid the time and expense of trial on the remaining issues cited above and to facilitate 25 the final resolution of this action, the Parties stipulate, through their counsel, to entry of the 26 following findings: 27 The conditions at the Site present or may present an imminent and substantial 28 endangerment to health or the environment. -3- 2:18-cv-00900-WBS-JDP STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 4 of 97 1 Defendants’ conduct was a substantial factor in causing the nuisance and condition of 2 pollution or nuisance at the Site. 3 The City is entitled to judgment on its CERCLA and HSAA claims against Defendants. 4 The City is entitled to judgment on its RCRA and Gatto Act claims against R&L and Estate 5 of Smith. 6 The City is entitled to judgment on its Porter-Cologne Act claim against Defendants. 7 The City is entitled to judgment on its declaratory relief claim against Defendants. 8 Plaintiffs are entitled to judgment on their public nuisance claim against Defendants. 9 The City is entitled to recover from Defendants its past response costs in the sum of 10 $125,627.90. 11 The City is entitled to recover from Defendants any reasonable future response costs for the 12 Site it incurs with the oversight and approval of the Department of Toxic Substances Control 13 (“DTSC”) consistent with the National Contingency Plan. 14 The City is entitled to recover from Defendants its reasonable attorneys’ fees, expert 15 witness fees, and other litigation costs in the sum of $1,409,500. 16 THEREFORE, Judgment is entered: (1) in favor of the City on its CERCLA, Porter- 17 Cologne Act, public nuisance, and HSAA claims, and a declaration that the City is entitled to 18 recover from Defendants any reasonable future response costs for the Site it incurs with the 19 oversight and approval of DTSC consistent with the National Contingency Plan; (2) in favor of 20 the City on its RCRA and Gatto Act claims against R&L and Estate of Smith; and (3) in favor of 21 the City and the People of the State of California of the City of West Sacramento on the public 22 nuisance claim against R&L, Clark, and Estate of Smith. The State of California is not a party to 23 this action or to this Stipulated Judgment. 24 Defendants are ordered to reimburse the City for its past response costs in the sum of 25 $125,627.90, and to reimburse the City for its reasonable attorneys’ fees, expert witness fees, and 26 other costs of suit incurred in litigating this action in the sum of $1,409,500. The remaining 27 amount of the judgment against Defendants reflecting the estimated cost to remediate and obtain 28 regulatory closure of the Site shall not be stated in a sum certain, in part because the cost of the -4- 2:18-cv-00900-WBS-JDP STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 5 of 97 1 remediation and regulatory closure of the Site is not known. 2 Defendants shall conduct a Site investigation to the satisfaction of DTSC. 3 Defendants shall perform those tasks listed within DTSC’s I&S/E Order, Docket No. HSA- 4 FY 19/20-129, dated May 6, 2020, as it may be amended by DTSC, to the extent DTSC 5 determines that those tasks are needed, with the oversight and approval of DTSC. 6 Nothing contained in this Stipulated Judgment is intended to be given preclusive effect in a 7 subsequent claim or action filed by any third party, including but not limited to DTSC or any 8 similar governmental entity. 9 10 NOW, THEREFORE, IT IS SO ORDERED, ADJUDGED, AND DECREED. 11 Dated: March 9, 2021 12 13 14 IT IS SO STIPULATED. 15 16 Dated: March 4, 2021 PALADIN LAW GROUP® LLP 17 By: /s/ Bret A. Stone 18 Bret A. Stone 19 Special Assistant City Attorney for the City of West Sacramento 20 Counsel for Plaintiffs 21 City of West Sacramento and People of the State of California 22 23 Dated: March 4, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP 24 By: /s/ Joseph Salazar 25 Joseph Salazar 26 Counsel for R and L Business Management, John 27 Clark, and the Estate of Nick Smith, Deceased 28 -5- 2:18-cv-00900-WBS-JDP STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 6 of 97 1 2 Dated: March 4, 2021 CLYDE AND CO US LLP 3 By: /s/ Alexander E. Potente 4 Alexander E. Potente 5 Counsel for Arrowood Indemnity Company, formerly known as Royal Insurance Company of 6 America, and successor to Royal Globe Insurance 7 Company 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 2:18-cv-00900-WBS-JDP STIPULATED JUDGMENT Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 7 of 97 EXHIBIT A Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 8 of 97 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: PLAINTIFFS’ MOTION FOR 15 v. SUMMARY JUDGMENT AGAINST DEFENDANTS R AND L BUSINESS 16 R AND L BUSINESS MANAGEMENT, a MANAGEMENT, JOHN CLARK, AND California corporation, f/k/a THE ESTATE OF NICK SMITH, 17 STOCKTON PLATING, INC., d/b/a DECEASED CAPITOL PLATING INC., a/k/a 18 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 19 a dissolved California corporation; at al., 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiffs City of West Sacramento, California (“the 24 City”) and the People of the State of California filed suit 25 against Defendants R&L Business Management and John Clark 26 (collectively referred to as “R&L”), the estate of Nick Smith, et 27 al., to address toxic levels of soil and groundwater 28 1 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 9 of 97 1 contamination resulting from the release of hazardous substances 2 at a property once occupied by a metal plating facility. Before 3 the court is plaintiffs’ motion for partial summary judgment 4 against defendants R&L and Smith. (Docket No. 95.) 5 I. Factual Background 6 During the 1940s, an automobile repair facility 7 operated at operated at 319 3rd Street, West Sacramento, 8 California (the “Property”). (Love. Decl. at 7.) Between 1940 9 and 1986, the Property was used for electroplating operations. 10 (Defs.’ Resp. to Pls.’ Statement of Undisputed Facts (“Defs.’ 11 SUF”) ¶ 70. A partnership of E. Birney Leland, Nick Smith, and 12 Frank Rosen owned and operated Capitol Plating during the early 13 1960s. (Id. at ¶ 71.) The partnership dissolved in 1963. (Id. 14 at ¶ 72.) Leland, Smith, and several others, including John 15 Clark, formed Stockton Plating, Inc. in December 1963. (Id. at ¶ 16 73.) In 1973, Smith and Clark again took over Capitol Plating. 17 Smith became president of Stockton Plating, Inc. and Clark took 18 over as general manager of the facility. (Id.; Pls.’ Mot. for 19 Summ. J. at 12.) 20 The Capitol Plating facility primarily plated chrome 21 bumpers. (Defs.’ SUF ¶ 74.) The process for plating chrome on 22 to bumpers consists of striping the bumper in acid or alkaline 23 solutions to the bare metal. (Pls.’s Mot. for Summ. J., Ex. 13 24 at 1 (Docket No. 95-15).) Before plating, the metal may be 25 ground and polished. (Id. at 2.) The surface is buffed after 26 each plating operation and after the finish coat. (Id.) Each 27 cycle involved the bumper being placed in a different tank of 28 metal solution: first, copper; then, nickel; last, chromium. 2 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 10 of 97 1 (Id.; Pls.’ Mot. for Summ. J. Ex. 2 (Dep. Richard Leland) at 63- 2 64.) 3 For the plating and washing cycles, a worker would 4 manually lift the bumpers, and move the bumpers between tanks 5 containing either chemicals or plain water. (Dep. Richard Leland 6 at 65-66.) The worker accomplished this by using two hooked rods 7 to hook onto the bumper and leverage it in and out of the tank. 8 (Id. at 64-65.) The bumper would be placed into a tank 9 containing a metal solution and an electrical current would be 10 applied to the tank. (Id. at 65-66.) The worker would then lift 11 the bumper from the tank and move it to the next tank in the 12 process. (Id.) 13 Due to the height of the tanks, an elevated duckboard 14 floor was built so the workers could stand in the optimal 15 position to lift and lower bumpers into the metal solutions. 16 (Pls.’ Mot for Summ. J., Ex. 1 (Dep. John Clark) at 84-85.) 17 Duckboard consisted of two-by-fours with half-inch spacers set in 18 a grid pattern on the floor to create an elevated platform 19 approximately three feet high for the workers to walk on around 20 the tank. (Id.) Any overflow from the tanks that fell through 21 the duckboard to a floor drain connected to the sewer system. 22 (Pls.’ Mot. for Summ. J., Ex. 19 at 1; Decl. John Clark at 84 23 (Docket No. 95-3).) Overflow could result, for example, from 24 bumper bolt holes holding liquid on the bumper’s way out of the 25 liquid and releasing it once the bumper was out of the liquid. 26 (Dep. John Clark at 85-86.) The duckboard would get slippery 27 with the water from the plating tanks. (Id. at 90.) The platers 28 could then slip and drop the bumpers causing the contents of the 3 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 11 of 97 1 tank to splash outside of the tank. (Id.) 2 If the floor drain was unable to handle the volume of 3 fluid, the plating fluids would flow out of the building through 4 a hole in the wall or through the back door where they spill out 5 onto the ground outside. (Dep. John Clark at 97-99.) When Clark 6 started as the general manager of the Capitol Plating facility, 7 he noticed that the ground outside the hole in the wall was 8 colored blue, which suggests that acidic copper was present. 9 (Dep. John Clark at 77 (Docket No. 95-3).) To prevent the 10 solutions used in the metal plating process from escaping the 11 building, Clark covered the hole in the wall with a dirt dam. 12 (Id. at 82.; Decl. John Clark at ¶ 3 (Docket No. 102-3).) The 13 dirt dam failed five to ten times before Clark decided to build a 14 concrete barrier in the dam’s place. (Dep. John Clark at 83.) 15 When the dirt wall broke, rinse water containing diluted 16 concentrations of plating fluids was likely released. (Defs.’ 17 Separate Statement at 3, ¶ 6 (Docket No. 102-2).) Clark then 18 built a concrete wall to stop fluids from exiting the facility. 19 (Decl. Adam Love at 15.) 20 The plating shop suffered two fires, one in 1973 and 21 the other in 1985. Plating operations stopped in May of 1985. 22 (Love Decl. at 8.) Capitol Plating used the property for storage 23 of bumpers until 1991. (Id.) No business has operated out of 24 the Property since then. (Id.) 25 In 1986, the California Department of Health Services 26 launched an investigation on Capitol Plating after the Sacramento 27 Bee reported that R&L was illegally dumping waste on the Property 28 (the “Site”). (Defs.’ Resp. to Pls.’ SUF at 3, ¶ 2f.) The 4 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 12 of 97 1 Department investigated and took samples and pictures of the 2 facility. (Id. at 3, ¶ 2g.) Later investigations at the 3 Property showed soil and groundwater contaminated with various 4 heavy metals including copper, chromium, and nickel at and 5 emanating from the Property. (Decl. Anne Farr at 7-10 (Docket 6 No. 95-27).) The levels of copper, nickel, and chromium at the 7 Site exceed federal and state regulatory limits for both 8 groundwater and soil. (Id.) 9 The City filed suit alleging, inter alia, violations of 10 the Resource Conservation Recovery Act (“RCRA”) §7002(a), 42 11 U.S.C. § 6972; the Comprehensive Environmental Response, 12 Compensation and Liability Act (“CERCLA”) § 107(a), 42 U.S.C. § 13 9607(a), and the Gatto Act, Cal. Health & Safety Code §§ 25403.1, 14 25403.5. Plaintiffs also raise claims for public nuisance and 15 declaratory relief. Plaintiffs now seek summary judgment on the 16 issue of liability on each of these claims. (Docket No. 95.) 17 II. Legal Standard 18 Summary judgment is proper “if the movant shows that 19 there is no genuine dispute as to any material fact and the 20 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 21 P. 56(a). A material fact is one that could affect the outcome 22 of the suit, and a genuine issue is one that could permit a 23 reasonable jury to enter a verdict in the non-moving party’s 24 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 25 (1986). 26 The party moving for summary judgment bears the initial 27 burden of establishing the absence of a genuine issue of material 28 fact and can satisfy this burden by presenting evidence that 5 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 13 of 97 1 negates an essential element of the non-moving party’s case. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 3 Alternatively, the movant can demonstrate that the non-moving 4 party cannot provide evidence to support an essential element 5 upon which it will bear the burden of proof at trial. Id. Any 6 inferences drawn from the underlying facts must, however, be 7 viewed in the light most favorable to the party opposing the 8 motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 9 U.S. 574, 587 (1986). 10 Under Fed. R. Civ. P. 56(g), if the court does not 11 grant all of the relief requested by the motion, it may enter an 12 order stating any material fact that is not genuinely in dispute 13 and treat those facts as established in the case. 14 III. Discussion 15 A. CERCLA Claim 16 “CERCLA was enacted in 1980 as a broad remedial measure 17 aimed at assuring ‘the prompt and effective cleanup of waste 18 disposal sites’ and ensuring that ‘parties responsible for 19 hazardous substance bore the cost of remedying the conditions 20 they created.’” Adobe Lumber, Inc. v. Hellman, 658 F. Supp. 2d 21 1188, 1192 (E.D. Cal. 2009) (quoting Mardan Corp. v. C.G.C. 22 Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986)). The Act holds 23 owners and operators of facilities at which hazardous substances 24 were disposed strictly liable. 3550 Stevens Creek Assocs. v. 25 Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir. 1990). The 26 Act does not “mandate ‘joint and several liability’ in every 27 case.” Burlington N. & Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 28 613 (2009). When “there is a reasonable basis for determining 6 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 14 of 97 1 the contribution of each cause to a single harm,” each defendant 2 “is subject to liability only for the portion of the total harm 3 that he has himself caused.” Id. (quoting Restatement (Second) 4 of Torts, § 433A). 5 To prevail in a private cost recovery action under 6 CERCLA, a plaintiff must prove that “(1) the site on which the 7 hazardous substances are contained is a ‘facility’ under CERCLA's 8 definition of that term; (2) a ‘release’ or ‘threatened release’ 9 of any ‘hazardous substance’ from the facility has occurred; (3) 10 such ‘release’ or ‘threatened release’ has caused the plaintiff 11 to incur response costs that were ‘necessary’ and ‘consistent 12 with the national contingency plan,’; and (4) the defendant is 13 within one of four classes of persons subject to the liability 14 provisions of Section 107(a).” Carson Harbor Vill., Ltd. v. 15 Unocal Corp., 270 F.3d 863, 870–71 (9th Cir. 2001) (internal 16 citations omitted) (quoting Stevens Creek, 915 F.2d at 1358. 17 Defendants do not appear to seriously dispute that 18 plaintiffs have established each of the elements above.1 19 Defendants instead argue that the harm is divisible and that a 20 divisibility defense may be invoked to defeat a motion for 21 summary judgment on CERCLA liability. (Defs.’ Opp. to Mot. Summ. 22 J. at 8 (Docket No. 102).) For that proposition, defendants rely 23 on United States v. Alcan Aluminum Corporation, 964 F.2d 252 (3d 24 1 Although defendants appear to suggest that there was no 25 release or that the release was insufficient, they do not further 26 discuss the issue. See Defs.’ Opp. to Mot. for Summ. J. at 6 (“Based on the evidence, R and L had, at most, five to ten 27 releases through the hole in the back of the plating facility. (Love Dec.) There is no direct evidence of any releases by R and 28 L other than those.”). 7 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 15 of 97 1 Cir. 1992). Defendants argue that the court in Alcan evaluated 2 the divisibility defense “just like any other affirmative 3 defense” and that the Ninth Circuit has “implicitly adopted the 4 Third Circuit’s approach” to the defense in Pakootas v. Teck 5 Cominco Metals, Ltd., 905 F.3d 565, 587 (9th Cir. 2018). (Defs.’ 6 Opp. to Mot. Summ. J. at 9 (Docket No. 102).) 7 The court does not agree with defendants’ 8 interpretation of Alcan. In Alcan, the government filed a 9 complaint against multiple defendants, including Alcan, to 10 recover costs incurred in the cleanup of hazardous wastes 11 released. Alcan, 964 F.2d at 257. The government settled with 12 all defendants except Alcan. Id. The government then moved for 13 summary judgment “to collect the balance of its response costs.” 14 Id. The district court granted the motion and “held that Alcan 15 was jointly and severally liable for the removal costs.” Id. 16 Upon review, the Third Circuit found “error” in the district 17 court granting summary judgment “for the full claim . . . without 18 conducting a hearing.” Id. at 269 (emphasis added). The Third 19 Circuit then remanded the case for the district court to 20 determine if Alcan could limit its liability based on its 21 “personal contribution to the harm.” Id. In other words, the 22 Third Circuit reversed not because the harm was divisible, but 23 rather because the district court assumed that the harm was not, 24 and assigned full liability for the remaining costs. See id. at 25 270 (“Neither the magistrate judge nor the district court engaged 26 in any factual investigation concerning the divisibility of the 27 environmental harm.”). Alcan does not stand for the proposition 28 that divisibility precludes partial summary judgment on the issue 8 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 16 of 97 1 of liability. Instead, Alcan permits this court to find 2 defendants liable under CERCLA and thereafter hold a hearing to 3 determine the extent of defendants’ contribution to the harm. 4 Further, even if the Alcan court interpreted 5 divisibility to preclude summary judgment on the issue of 6 liability, the Ninth Circuit did not adopt such an interpretation 7 in Pakootas. In Pakootas, plaintiffs first moved for partial 8 summary judgment on defendants’ divisibility defense and the 9 district court granted it. 905 F.3d at 573-74. Then, the 10 district court “held that [defendant] was a liable party under 11 [CERCLA].” Id. at 574. After holding that defendant was liable, 12 the court then concluded “that without its divisibility defense, 13 [defendant] was jointly and severally liable” for recovery costs. 14 Id. The district court thus made three independent findings: (1) 15 that the harm was not divisible; (2) that defendant was liable 16 under CERCLA; and (3) that defendant was jointly and severally 17 liable. Defendant appealed all three findings. Id. at 574. 18 Defendants are correct that the Ninth Circuit in 19 Pakootas evaluated “how to review divisibility evidence on 20 summary judgment.” Id. at 588; see Defs.’ Opp. to Mot. for Summ. 21 J. at 9 (Docket No. 102). Defendants are incorrect, however, in 22 concluding that the Pakootas court’s evaluation of divisibility 23 on summary judgment means divisibility can “defeat” a motion for 24 summary judgment as to CERCLA liability. The court discussed 25 divisibility on summary judgment because plaintiffs specifically 26 moved for summary judgment on divisibility. 905 F.3d at 573-74. 27 The court did not find, nor did it “implicitly adopt” the idea, 28 that a finding of genuine issue of material fact as to 9 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 17 of 97 1 divisibility precludes a district court from finding a party 2 liable under CERCLA. Indeed, the district court separated its 3 finding of CERCLA liability from its finding on divisibility, and 4 the Ninth Circuit evaluated each finding independently. The 5 Ninth Circuit did not comingle the issues because a court can 6 find that a party was both liable under CERCLA but not jointly 7 and severally liable for all of the harm. See Burlington, 556 8 U.S. at 614 (distinguishing CERCLA liability from the “scope of 9 liability”); Cal. Dep't of Toxic Substances Control v. Interstate 10 Non-Ferrous Corp., 298 F. Supp. 2d 930, 968 (E.D. Cal. 2003) 11 (“[A] plaintiff ‘bringing a cost recovery action ... must prove 12 only that each defendant is a ‘liable’ party and not that 13 defendants are responsible for a certain share of the plaintiff’s 14 response costs.”). Accordingly, plaintiff is entitled to summary 15 on the issue of liability on their CERCLA claim. Defendants are 16 entitled to a hearing on the scope of that liability and the 17 proportion of damages and costs they must bear.2 18 B. RCRA Claim 19 Section 6972(a)(1)(B) of the RCRA “permits a private 20 party to bring suit against certain responsible persons, 21 including former owners, “who ha[ve] contributed or who [are] 22 contributing to the past or present handling, storage, treatment, 23 24 2 The court makes no factual conclusions as to divisibility. No party has moved for summary judgment on the 25 issue. Further, divisibility analysis is “factually complex,” 26 Alcan, 964 F.2d at 269, and apportionment methods “vary tremendously depending on the facts and circumstances of each 27 case,” Pakootas, 905 F.3d at 595. Those questions must be determined in a subsequent hearing. 28 10 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 18 of 97 1 transportation, or disposal of any solid or hazardous waste which 2 may present an imminent and substantial endangerment to health or 3 the environment.” Meghrig v. KFC W., Inc., 516 U.S. 479, 484 4 (1996); 42 U.S.C.A. § 6972(a)(1)(B). Section 6972(a) authorizes 5 district courts “to restrain any person who has contributed or 6 who is contributing to the past or present handling, storage, 7 treatment, transportation, or disposal of any solid or hazardous 8 waste ..., to order such person to take such other action as may 9 be necessary, or both.” 42 U.S.C.A. § 6972(a). To prevail on a 10 claim under RCRA § 7002(a)(1)(B), a plaintiff must prove that (1) 11 defendant “was a past or present generator or transporter of 12 solid or hazardous waste or past or present owner or operator of 13 a solid or hazardous waste treatment, storage or disposal 14 facility”; (2) defendant “contributed to the handling, storage, 15 treatment, transportation, or disposal of solid or hazardous 16 waste”; and, (3) “the solid or hazardous waste in question may 17 present an imminent and substantial endangerment to health or the 18 environment.” Cal. Dep't of Toxic Substances Control, 298 F. 19 Supp. 2d at 971; 42 U.S.C. § 6972(a)(1). 20 Defendants contest only the substantial and imminent 21 endangerment element. As under plaintiffs’ CERCLA claim, 22 defendants also argue that the divisibility defense precludes 23 summary judgment on this claim. Assuming, without deciding, that 24 the divisibility defense applies here just as it applies under a 25 CERCLA claim, for the reasons above, the court rejects the 26 divisibility argument and evaluates only whether the waste may 27 present an imminent and substantial endangerment. 28 1. Legal Standard 11 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 19 of 97 1 The RCRA authorizes injunctive relief where the site 2 conditions “may present an imminent and substantial endangerment 3 to health or the environment.” Id. The language in the statute 4 is “expansive.” Lincoln Properties, Ltd. v. Higgins, No. CIV. S- 5 91-760DFL/GGH, 1993 WL 217429, at *12 (E.D. Cal. Jan. 21, 1993) 6 (quoting Dague v. City of Burlington, 935 F.2d 1343, 1355 (2nd 7 Cir. 1991)). First, the word “may” precedes the standard of 8 liability. This wording is intended “to confer upon the courts 9 the authority to grant affirmative equitable relief to the extent 10 necessary to eliminate any risk posed by toxic wastes.” Cal. 11 Dep't of Toxic Substances Control, 298 F. Supp. 2d at 971 12 (quoting id.). Application of the statute is therefore not 13 limited to emergency situations. Lincoln Properties, No. CIV. S- 14 91-760DFL/GGH, 1993 WL 217429, at *12. Second, “endangerment” 15 means “a threatened or potential harm and does not require proof 16 of actual harm.” Cal. Dep't of Toxic Substances Control, 298 F. 17 Supp. 2d at 971 (quoting id.) Third, “a finding of ‘imminence’ 18 does not require a showing that actual harm will occur 19 immediately so long as the risk of threatened harm is present.” 20 Id. (quoting Lincoln Properties, No. CIV. S-91-760DFL/GGH, 1993 21 WL 217429, at *13). 22 Finally, “‘[s]ubstantial’ does not require 23 quantification of the endangerment (e.g., proof that a certain 24 number of persons will be exposed, that ‘excess deaths' will 25 occur, or that a water supply will be contaminated to a specific 26 degree) . . . endangerment is substantial if there is some 27 reasonable cause for concern that someone or something may be 28 exposed to a risk of harm by a release or a threatened release of 12 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 20 of 97 1 a hazardous substance if remedial action is not taken.” Id. 2 (quoting Lincoln Properties, 1993 WL 217429, at *13). 3 “Injunctive relief should not be granted,” however, “‘where the 4 risk of harm is remote in time, completely speculative in nature, 5 or de minimis in degree.’” Id. (quoting Lincoln Properties, 1993 6 WL 217429, at *13). 7 2. Application 8 The court finds a genuine issue of material fact as to 9 whether the site conditions may present an imminent and 10 substantial endangerment. Plaintiffs present evidence that the 11 levels of copper, nickel, and chromium at the Site exceed state 12 regulatory limits for both groundwater and soil. (Decl. Anne Far 13 at 7-10). Dr. Farr, plaintiffs’ expert, relies on the findings 14 from three separate investigations conducted by Advanced 15 GeoEnvironmental on behalf of Capitol Plating, concluding that 16 the Site contained “hazardous levels of chromium, nickel, and 17 copper.” (Id. at 7.) Dr. Farr also cites two additional 18 investigations concluding the same. (Id. at 7-8.) Defendants do 19 not offer competing evidence on the level of contamination found 20 on the Site nor do they dispute that the concentration of copper, 21 nickel, and chromium exceed regulatory limits. 22 The crux of the issue, however, is whether this level 23 of contamination constitutes an imminent and substantial 24 endangerment. Dr. Farr concludes that such level of 25 “contamination poses a threat to human health and the 26 environment.” (Decl. Anne Farr at 3 (Docket No. 95-27).) On the 27 other hand, defendants argue that Dr. Farr relies on a Department 28 of Toxic Substance Control (DTSC) report that was written but 13 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 21 of 97 1 never issued. (See id. at ¶ 25.) Plaintiffs argue that the lack 2 of issuance does not mean that the Site is not an imminent and 3 substantial endangerment. Id. at 5. The DTSC’s refusal to 4 conclude that the contamination may pose an imminent and 5 substantial danger, however, competes with Dr. Farr’s conclusion 6 that the level of contamination does pose such a threat and 7 suffices to find an issue of material fact. 8 Indeed, this court cannot conclude that the risk of 9 harm is imminent and substantial merely because contamination 10 levels exceed California regulatory standards. In Simsbury-Avon 11 Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199 12 (2d Cir. 2009), the Second Circuit refused to find an imminent 13 and substantial endangerment where lead levels “exceeded 14 Connecticut's [Remediation Standard Regulation] and [Significant 15 Environmental Hazard] thresholds for residential sites,” and 16 plaintiff “dr[e]w the conclusion that lead contamination on the 17 site presents ‘a potential exposure risk to both humans and 18 wildlife’” based “solely” on the contamination exceeding such 19 regulatory thresholds. Id. at 212. Plaintiff’s report 20 specifically noted that “evaluation of the degree of such risk 21 would require a further risk assessment” and did not suggest 22 “that anyone is subject to long-term exposure to lead 23 contamination . . . or that there are realistic pathways of 24 exposure.” Id. 25 Simsbury-Avon is instructive here. Every report Dr. 26 Farr relies on (other than the DTSC report) concludes only that 27 the contamination levels exceed California regulatory levels. 28 Just as in Simsbury-Avon, however, Dr. Farr repeatedly qualifies 14 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 22 of 97 1 the conclusions of almost every report by stating that the full 2 extent of contamination is unknown. (Decl. Anne Farr at ¶ 19; 3 see also, e.g., id. at ¶ 21 (“The extent(s) of the constituents 4 exceeding [Maximum Concentration Levels] were not defined.”); id. 5 at ¶ 23 (“Additional sampling . . . is necessary to fully 6 evaluate the extent of contamination at and emanating from the 7 Facility.”); id. at 24 (“The full extent of the contamination has 8 not yet been defined.”).) Dr. Farr also does not conclude that 9 anyone is subject to long-term exposure, or that they 10 realistically will be exposed, to the contamination. In other 11 words, Dr. Farr does not evaluate the risk at hand beyond the 12 conclusion that the levels of contamination exceed California 13 regulatory thresholds. “State standards do not define a party's 14 federal liability under RCRA.” Interfaith Cmty. Org. v. 15 Honeywell Int'l, Inc., 399 F.3d 248, 261 n.6 (3d Cir. 2005). 16 This court therefore cannot conclude that the Site poses an 17 imminent and substantial threat based only on the Site’s 18 noncompliance with California concentration limits. 19 3. Injunctive Relief 20 “Section 6972(a) authorizes district courts ‘to 21 restrain any person who has contributed or who is contributing to 22 the past or present handling, storage, treatment, transportation, 23 or disposal of any solid or hazardous waste ..., to order such 24 person to take such other action as may be necessary, or both.’” 25 Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996). Because 26 plaintiffs have not established all elements of the RCRA claim, 27 the current state of the record does not support issuance of a 28 mandatory injunction. See id.; see also LAJIM, LLC v. Gen Elec. 15 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 23 of 97 1 Co., 917 F.3d 933, 945 (7th Cir. 2019) (“A RCRA plaintiff either 2 demonstrates irreparable harm or fails to prove his or her case 3 on the merits.”). Accordingly, plaintiffs’ request for 4 injunctive relief is denied. 5 IT IS THEREFORE ORDERED that plaintiff’s motion for 6 partial summary judgment on the issue of liability on their 7 federal claim for violation of the Comprehensive Environmental 8 Response, Compensation and Liability Act (“CERCLA”) § 107(a) be, 9 and the same hereby is GRANTED. 10 IT IS FURTHER ORDERED that plaintiffs’ motion for 11 summary judgment on their federal claim for violation of the 12 Resource Conservation Recovery Act (“RCRA”) §7002(a) be, and the 13 same hereby is DENIED. 14 This matter is set for Status Conference on January 21, 15 2020, at 1:30 p.m., to discuss the scheduling of an evidentiary 16 hearing to determine the scope and extent of defendants’ 17 liability and the proportionate share of the damages and cleanup 18 costs to be borne by each defendant on the CERCLA claim. At such 19 evidentiary hearing, the court will also hear the conflicting 20 evidence on the RCRA claim and consider the supplemental state 21 law claims. No later than ten court days before the Status 22 Conference, counsel shall file a Joint Status Report which shall 23 include suggested dates for the evidentiary hearing. 24 Dated: December 3, 2019 25 26 27 28 16 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 24 of 97 EXHIBIT B Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 25 of 97 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 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 26 of 97 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 2 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 27 of 97 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 1The court expresses no opinion as to whether or to what 26 extend defendants may offset their liability by the liability of 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. 3 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 28 of 97 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 This facility has since been demolished, but the concrete 3 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. 4 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 29 of 97 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 5 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 30 of 97 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 6 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 31 of 97 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 7 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 32 of 97 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 8 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 33 of 97 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 9 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 34 of 97 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 10 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 35 of 97 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 11 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 36 of 97 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 12 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 37 of 97 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 13 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 38 of 97 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 14 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 39 of 97 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 15 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 40 of 97 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, 16 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 41 of 97 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 17 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 42 of 97 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 18 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 43 of 97 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 19 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 44 of 97 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. 20 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 45 of 97 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 21 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 46 of 97 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 22 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 47 of 97 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 23 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 48 of 97 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 24 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 49 of 97 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 5Dr. 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 26 of plating liquids and rinse water onto the concrete floor after 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.) 25 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 50 of 97 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 26 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 51 of 97 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: 27 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 52 of 97 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 20 21 22 23 24 25 26 27 28 28 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 53 of 97 EXHIBIT C Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 54 of 97 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---- 12 13 CITY OF WEST SACRAMENTO, No. 2:18-cv-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 14 STATE OF CALIFORNIA, 15 Plaintiffs, MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR 16 v. PARTIAL SUMMARY JUDGMENT ON ITS PUBLIC NUISANCE AND 17 R AND L BUSINESS MANAGEMENT, a PORTER-COLOGNE ACT CLAIMS California corporation, f/k/a 18 STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a 19 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 20 a dissolved California corporation; et al., 21 Defendants. 22 23 ----oo0oo---- 24 Plaintiffs City of West Sacramento, California and the 25 People of the State of California (collectively, “plaintiffs”) 26 brought this action to address toxic levels of soil and 27 groundwater contamination resulting from the release of hazardous 28 1 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 55 of 97 1 substances from a metal plating facility formerly located at 319 2 3rd Street, West Sacramento, California (the “Site”). 3 The court previously granted in part plaintiffs’ motion 4 for partial summary judgment, holding defendants R and L Business 5 Management (“R&L”), John Clark, and the Estate of Nick E. Smith 6 (collectively, “defendants”) liable under the Comprehensive 7 Environmental Response, Compensation, and Liability Act 8 (“CERCLA”), 42 U.S.C. § 9607(a). (Order at 10 (Docket No. 125).) 9 The court found that triable issues of material fact remained as 10 to plaintiffs’ claim under the Resource Conservation and Recovery 11 Act (“RCRA”), 43 U.S.C. § 6972. (Id. at 14-16.) 12 After holding an evidentiary hearing, the court further 13 determined that defendants’ contribution to the pollution at the 14 Site was not divisible from the total contamination present at 15 the Site under CERCLA. (See Mem. and Order re: Defendants’ 16 Divisibility Defense (“Divisibility Order”) (Docket No. 203).) 17 The court described the factual and procedural background of this 18 lawsuit in great detail in these prior orders. (See Docket Nos. 19 125, 203.) 20 Plaintiffs now move for partial summary judgment 21 against defendants as to their claims under California public 22 nuisance law and the Porter-Cologne Water Quality Control Act, 23 Cal. Wat. Code § 13304(c).1 24 I. Legal Standard 25 1 Plaintiffs’ contemporaneous motion for summary judgment 26 on their claims under the Gatto Act, Cal. Health & Safety Code §§ 25403.1, 25403.5; the Carpenter-Presley-Tanner Hazardous 27 Substance Account Act (“HSAA”), Cal Health & Safety Code § 25363(d); and for Injunctive Relief will be decided in a separate 28 Order. 2 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 56 of 97 1 A. Summary Judgment 2 Summary judgment is proper “if the movant shows that 3 there is no genuine dispute as to any material fact and the 4 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a). A material fact is one that could affect the outcome 6 of the suit, and a genuine issue is one that could permit a 7 reasonable jury to enter a verdict in the non-moving party’s 8 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 9 (1986). 10 The party moving for summary judgment bears the initial 11 burden of establishing the absence of a genuine issue of material 12 fact and can satisfy this burden by presenting evidence that 13 negates an essential element of the non-moving party’s case. 14 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 15 Alternatively, the movant can demonstrate that the non-moving 16 party cannot provide evidence to support an essential element 17 upon which it will bear the burden of proof at trial. Id. Any 18 inferences drawn from the underlying facts must, however, be 19 viewed in the light most favorable to the party opposing the 20 motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 21 U.S. 574, 587 (1986). 22 II. Discussion 23 Plaintiffs first argue that they are entitled to 24 summary judgment on their claim that defendants’ contributions to 25 pollution at the Site have caused a public nuisance. (See Pls.’ 26 Mem. P. & A. at 23-32 (Docket No. 204).) Under California law, a 27 nuisance is “[a]nything which is injurious to health . . . or is 28 indecent or offensive to the senses, or an obstruction to the 3 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 57 of 97 1 free use of property, so as to interfere with the comfortable 2 enjoyment of life or property . . . .” Cal. Civ. Code § 3479. A 3 public nuisance is “one which affects at the same time an entire 4 community or neighborhood, or any considerable number of persons, 5 although the extent of the annoyance or damage inflicted upon 6 individuals may be unequal.” Cal. Civ. Code § 3480. A plaintiff 7 must show “substantial and unreasonable interference, either with 8 a public right or with the enjoyment of a plaintiff's property.” 9 Coppola v. Smith, 935 F. Supp. 2d 993, 1017–19 (E.D. Cal. 2013) 10 (Ishii, J.) (citing City of Los Angeles v. San Pedro Boat Works, 11 635 F.3d 440, 452 (9th Cir. 2011); People ex rel. Gallo v. Acuna, 12 14 Cal. 4th 1090 (Cal. 1997)). 13 To prevail on a claim of public nuisance, “[a] 14 plaintiff must establish a ‘connecting element’ or a ‘causative 15 link’ between the defendant’s conduct and the threatened harm.” 16 Citizens for Odor Nuisance Abatement v. City of San Diego, 8 Cal. 17 App. 5th 350, 359 (2017) (quoting In re Firearm Cases, 126 Cal. 18 App. 4th 959, 988 (2005)). “[T]he causation element of a public 19 nuisance cause of action is satisfied if the conduct of a 20 defendant is a substantial factor in bringing about the result.” 21 People v. ConAgra Grocery Products Co., 17 Cal. App. 5th 51, 101 22 (2017). 23 “‘The substantial factor standard is a relatively broad 24 one, requiring only that the contribution of the individual cause 25 be more than negligible or theoretical.’ Thus, ‘a force which 26 plays only an infinitesimal or theoretical part in bringing about 27 injury, damage, or loss is not a substantial factor,’ but a very 28 minor force that does cause harm is a substantial factor.” Id. 4 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 58 of 97 1 (quoting Bockrath v. Aldrich Chem. Co., 21 Cal. 4th 71, 79 (Cal. 2 1999)). 3 Plaintiffs also argue that they are entitled to summary 4 judgment on their claim that defendants violated the Porter 5 Cologne Water Quality Control Act. The Porter-Cologne Act permits 6 a governmental cost recovery claim to be brought against “any 7 person who has discharged or discharges waste . . . or who has 8 caused or permitted . . . waste to be discharged or deposited . . 9 . into the waters of the state and creates, or threatens to 10 create, a condition of pollution or nuisance.” Cal. Wat. Code § 11 13304(a). 12 To prevail on a claim under the Porter-Cologne Act, a 13 plaintiff must satisfy the same common-law causation requirements 14 as for a claim under California public nuisance law. See City of 15 Modesto Redev. Agency v. Superior Court, 119 Cal. App. 4th 28, 38 16 (2004) (“[I]t appears that the Legislature not only did not 17 intend to depart from the law of nuisance, but also explicitly 18 relied on it in the Porter-Cologne Act . . . .”). 19 Here, a disputed issue of fact remains as to whether 20 defendants’ acts or omissions were a substantial factor in 21 causing the nuisance or condition of pollution at issue. 22 Defendants’ expert, Dr. Love, and plaintiffs’ expert, Dr. Farr, 23 disagree as to the extent of defendants’ contribution to the 24 pollution at the Site. While Dr. Farr concludes that defendants’ 25 contribution was significant enough to require remediation on its 26 own, independent of any contributions made by prior operators of 27 the Site (see Salazar Decl. Ex. C, Rebuttal Exp. Report of Dr. 28 Farr at 5-13 (“Farr Rebuttal”) (Docket No. 206-1)), Dr. Love 5 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 59 of 97 1 concludes that defendants’ contributions “would have been trivial 2 compared to the numerous years of hazardous materials release 3 from previous Site operations” and “would reasonably be expected 4 to not have, on their own, caused the need for site clean-up” 5 (see Salazar Decl. Ex. B, Exp. Report of Dr. Love at 15 (“Love 6 Report”) (Docket no. 206-1)). Though the court previously 7 assessed the experts’ credibility the evidentiary hearing on 8 defendants’ divisibility defense under CERCLA, the court made no 9 finding of credibility in the context of issue of causation now 10 before the court. (See generally Divisibility Order.) 11 Plaintiff’s motion for summary judgment on its nuisance 12 and Porter Cologne Act claims must therefore be denied. See 13 Celotex, 477 U.S. at 322–23. The court will resolve the 14 credibility of Dr. Love and Dr. Farr as to causation with respect 15 to plaintiffs’ claims for nuisance Porter Cologne Water Quality 16 Control Act violation at the time of trial. 17 IT IS THEREFORE ORDERED that plaintiffs’ motion for 18 summary judgment (Docket No. 204) be, and the same hereby is, 19 DENIED as to plaintiffs’ claims under California public nuisance 20 law and the Porter Cologne Water Quality Control Act. 21 Dated: October 28, 2020 22 23 24 25 26 27 28 6 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 60 of 97 EXHIBIT D Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 61 of 97 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, AMENDED MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR 15 v. SUMMARY JUDGMENT ON THEIR CLAIMS UNDER THE GATTO ACT 16 R AND L BUSINESS MANAGEMENT, a AND THE HSAA 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; et al., 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiffs City of West Sacramento, California and the 24 People of the State of California (collectively, “plaintiffs”) 25 brought this action to address toxic levels of soil and 26 groundwater contamination resulting from the release of hazardous 27 substances from a metal plating facility formerly located at 319 28 1 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 62 of 97 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”). (Order at 10 (Docket No. 8 125).) The court has also found that triable issues of material 9 fact remain as to plaintiffs’ claims under the Resource 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.) Additionally, after an evidentiary hearing 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. (See Mem. and 17 Order re: Defendants’ Divisibility Defense (“Divisibility Order”) 18 (Docket No. 203).) The facts and procedural background of the 19 case have been discussed fully in these prior Orders, and will 20 not be repeated here. (See Docket Nos. 125, 203, 211.) 21 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).) On their Gatto Act claim, the City requests a permanent 28 injunction requiring defendants to investigate and clean up 2 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 63 of 97 1 releases of hazardous materials at the Site. (See id. at 32-35.) 2 II. Discussion 3 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].” Cal. Health and Safety Code § 25363(d). For the 8 purposes of the HSAA, a “‘responsible party’ or ‘liable person,’ 9 . . . means those persons described in section 107(a) of 10 [CERCLA].” Id. § 25323(a)(1). Thus, a cost recovery claim under 11 the HSAA has the same elements as a cost recovery claim under 12 CERCLA. Orange Cty. Water Dist. v. Alcoa Glob. Fasteners, Inc., 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 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. (See Defs.’ Opp’n at 2.) 21 Accordingly, plaintiffs’ motion summary judgment on the issue of 22 liability under the HSAA will be granted. Damages have yet to be 23 determined, and plaintiffs do not seek summary judgment on the 24 amount of damages at this time. 25 B. The Gatto Act 26 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 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 64 of 97 1 by hazardous materials and to recover the costs of investigation 2 and cleanup from responsible parties. See Cal. Health & Safety 3 Code §§ 25403.1, 25403.5. Section 25403.1 provides local 4 agencies with investigatory and cleanup authority, subject to 5 certain procedural requirements: 6 A local agency may, in accordance with this chapter, take any action that the local 7 agency determines is necessary and that is consistent with other state and federal laws 8 to investigate and clean up a release on, under, or from blighted property that the 9 local agency has found to be within a 10 blighted area within the local agency’s boundaries due to the presence of hazardous 11 materials following a Phase I or Phase II environmental assessment . . . . 12 13 Cal. Health & Safety Code § 25403.1(a)(1)(A). 14 This section applies “whether the local agency owns 15 that property or not.” Id. In other words, without the need for 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. See id. §§ 25403.1(a)(1)(A), 22 25403.1(b)(2)(A). 23 Section 25403.5 further allows local agencies to 24 recover the costs they incur during the investigation and cleanup 25 of a site. See id. § 25403.5. “[I]f a local agency undertakes 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 4 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 65 of 97 1 material, the responsible party shall be liable to the local 2 agency for the costs incurred in the action.” Id. Like the 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). See id. §§ 25403.5(a), 25403(s), 25323.5(a)(1). 6 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). (See 9 Defs.’ Opp’n at 2; Docket No. 125.) 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. See id. § 25403.1(a)(1)(A). 20 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. No order of this court is required 23 for the City to do so. However, the City asks the court to go 24 further and to order defendants to do the investigation and 25 cleanup themselves. Considering the present posture of this 26 case, the court determines that such an order would be premature 27 and impractical at this time. 28 District courts have broad discretion “to manage their 5 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 66 of 97 1 own affairs so as to achieve the orderly expeditious disposition 2 of cases.” Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016) 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). Though the court has already found defendants to be 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. (See Third Am. Compl. (“TAC”) (Docket No. 12 45); Docket Nos. 125, 203, 211.) For the reasons that follow, 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. See 17 Dietz, 136 S. Ct. at 1087. 18 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. (See TAC ¶ 85 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 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 67 of 97 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.” See 42 U.S.C. § 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 26 27 1 The court expresses no opinion in this Order as to the merits of any of plaintiffs’ claims beyond their Gatto Act and 28 HSAA claims. 7 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 68 of 97 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. See Cty. of Santa Clara v. Atl. Richfield Co., 4 137 Cal. App. 4th 292, 306 (2006); Cal. Code Civ. P. § 731. 5 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. But if 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.” Santa Clara, 137 Cal. 16 App. 4th at 306. 17 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 2 Whether the Gatto Act authorizes suits for injunctive 22 relief is not entirely clear. Section 25323.5 of the Act contemplates that, in instances where a local agency “undertakes 23 action to investigate property or clean up, or to require others to investigate or clean up, including compelling a responsible 24 party through a civil injunctive action, a release of hazardous material, the responsible party shall be liable to the local 25 agency for the costs incurred in the action.” See Cal. Health & 26 Safety Code §§ 25323.5(a). One California Court of Appeals has held that similar language contained in the Polanco Redevelopment 27 Act, when read in concert with language authorizing redevelopment agencies to take “any action” necessary to remove hazardous 28 substances from properties within a redevelopment project area, 8 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 69 of 97 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 authorized redevelopment agencies to seek injunctive relief requiring responsible parties to clean up hazardous substances on 11 property within a redevelopment project area. See Redev. Agency 12 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 13 the Gatto Act, inasmuch as the California Legislature has declared the Gatto Act to be the “policy successor to the Polanco 14 Redevelopment Act” and “that any judicial construction or interpretation of the Polanco Redevelopment Act also apply to [the 15 Gatto Act].” Cal. Health & Safety Code § 25403.8. On the other hand, plaintiffs do not point to, and the 16 court is not aware of, any case in which a local agency has obtained an injunction under the Gatto Act compelling a 17 responsible party to investigate or clean up a site contaminated 18 with hazardous materials. The Act’s text and structure seem overwhelmingly concerned with authorizing local agencies to 19 investigate, clean up, and recover costs for contaminated sites themselves. See Cal. Health & Safety Code § 25403.1-25403.5. 20 For instance, the Act imposes a number of detailed requirements on local agencies to ensure that their investigations and/or 21 cleanups receive California Department of Toxic Substances 22 Control (“DTSC”) or the appropriate regional water board approval. See, e.g., id. § 25403.1(a)(2)(B) (requiring that the 23 local agency “submit an investigation plan and cost recovery agreement to the regional board or the department for review and 24 approval” before taking action to clean up the release); § 25403.1(a)(2)(C) (“After completion of the investigation plan, 25 have a cleanup plan prepared by a qualified independent 26 contractor.”). These requirements would seem to be superfluous if local agencies were simply entitled to injunctive relief 27 compelling responsible parties to investigate and clean up the site instead of the agency. However, the court does not resolve 28 that issue at this time. 9 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 70 of 97 1 juncture would be inconsistent with Orders previously issued by 2 the court pertaining to plaintiffs’ CERCLA § 107 claim. (See 3 Docket Nos. 125, 203). Since the court has already found 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 10 42 U.S.C. § 9607(a); Cal. Health & Safety Code §§ 25363(d), 11 25403.5. Either the City should do the cleanup or the defendants 12 should; to have both of them doing it at the same time would 13 potentially lead to chaos. This potential conflict would more 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 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 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 71 of 97 EXHIBIT E Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 72 of 97 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---- 12 13 CITY OF WEST SACRAMENTO, No. 2:18-cv-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 14 STATE OF CALIFORNIA,, 15 Plaintiff, 16 v. AMENDED FINAL PRETRIAL ORDER 17 R AND L BUSINESS MANAGEMENT, a California corporation, 18 f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., 19 a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL 20 PLATING, INC., a dissolved California corporation; JOHN 21 CLARK, an individual; ESTATE OF NICK E. SMITH, DECEASED; 22 et al., 23 Defendant. 24 ----oo0oo---- 25 26 A Final Pretrial Conference was held in this matter, 27 pursuant to the provisions of Rule 16(d) of the Federal Rules of 28 Civil Procedure and Local Rule 282, on January 4, 2021. Bret A. 1 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 73 of 97 1 Stone appeared as counsel for plaintiffs City of West Sacramento 2 (“the City”) and the people of the State of California. Joseph 3 A. Salazar, Jr. appeared as counsel for defendants and third- 4 party plaintiffs R and L Business Management fka Stockton 5 Plating, Inc. (“R&L”), John Clark (“Clark”), and the Estate of 6 Nick E. Smith (“Smith”).1 Jennifer Hartman King and Alanna 7 Lungren appeared as counsel for third-party defendant County of 8 Yolo. Following the conference, the court issued a Final 9 Pretrial Order (“PTO”), directing the parties to file and serve 10 any objections and proposed modifications to PTO the within five 11 court days. (Docket No. 233.) 12 On January 12, 2021, plaintiffs filed objections and 13 proposed modifications to the PTO. (Docket No. 239.) On January 14 20, 2021, defendants filed a response to plaintiffs’ objections 15 and proposed modifications. (Docket No. 243.) The court held a 16 hearing on those objections and proposed modifications on January 17 26, 2010. Having considered plaintiffs’ objections and 18 defendants’ responses, the court issues the following Amended 19 Pretrial Order: 20 I. Jurisdiction – Venue 21 Jurisdiction over plaintiffs’ claims is predicated upon 22 federal question, 28 U.S.C. § 1331. Specifically, the court has 23 federal question jurisdiction over plaintiffs’ first claim under 24 the Resource Conservation and Recovery Act (“RCRA”) § 7002(a), 42 25 U.S.C. § 6972(a), and plaintiffs’ second claim under the 26 1 Only defendants R and L Business Management and John 27 Clark filed third-party claims against the County of Yolo; the Estate of Nick E. Smith is not a third-party plaintiff in this 28 matter. 2 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 74 of 97 1 Comprehensive Environmental Response, Compensation and Liability 2 Act (“CERCLA”) § 107(a), 42 U.S.C. § 9607(a). The court has 3 supplemental jurisdiction over plaintiffs’ other claims pursuant 4 to 28 U.S.C. § 1367. 5 Jurisdiction over third-party plaintiffs’ claim is 6 predicated upon federal question, 28 U.S.C. § 1331, because their 7 claim for contribution under CERCLA § 9613(f)(1) arises under 8 laws of the United States. Jurisdiction over third-party 9 defendant’s counterclaim under CERCLA § 113(f) is likewise 10 predicated upon federal question, 28 U.S.C. § 1331. The court 11 has supplemental jurisdiction over third-party defendant’s other 12 counterclaims pursuant to 28 U.S.C. § 1367. 13 Venue is undisputed and is hereby found to be proper. 14 II. Jury – Non-Jury 15 Plaintiffs represent that they have voluntarily 16 abandoned any claims that would require trial by jury and, 17 accordingly, have requested a bench trial. 18 A. The City’s RCRA Claim against Defendants 19 Defendants have demanded a trial by jury of the City’s 20 RCRA claim, arguing that the potential availability of civil 21 penalties under RCRA § 6972(a)(1)(B) triggers the Seventh 22 Amendment right to a jury. Defendants cite to Tull v. United 23 States, 481 U.S. 412, 418-25 (1987), where the Supreme Court held 24 that the defendant had “a constitutional right to a jury trial to 25 determine his liability” as to his claim under § 1319 of the 26 Clean Water Act because the statute provided for, and the 27 plaintiff sought, civil penalties. 28 At least one federal district court has held that, 3 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 75 of 97 1 under Tull, parties are entitled to a jury determination on the 2 issue of liability for civil penalties under RCRA’s citizen suit 3 provision, 42 U.S.C. § 6972(a)(1)(B). See N.C. Envtl. Justice 4 Network v. Taylor, No. 4:12-CV-154-D, 2014 WL 7384970, at *3 5 (E.D.N.C. Dec. 29, 2014). However, plaintiffs here do not seek 6 civil penalties under RCRA. They seek only “an injunction 7 compelling defendants to abate the imminent and substantial 8 endangerment . . . at the Site.” (See Pls.’ Pretrial Statement § 9 10 (Docket No. 226).) In fact, plaintiffs do not seek civil 10 penalties under any of their claims--the operative complaint in 11 this matter, plaintiffs’ Third Amended Complaint, does not 12 mention civil penalties at all. (See Pls.’ Third Am. Compl. 13 (“TAC”), Prayer for Relief ¶¶ 1-10 (Docket No. 45).) Because 14 there is no potential for the City to recover civil penalties in 15 this case, defendants are not entitled to a jury and the City’s 16 RCRA claim will be tried before the court, sitting without a 17 jury. 18 B. Third-Party Claims under CERCLA § 113(f) 19 Third-party defendant has demanded a jury trial on 20 third-party plaintiffs’ claim against it for contribution under 21 CERCLA § 113(f), 42 U.S.C. § 9613(f)(1), as well as on its 22 counterclaim against third-party plaintiffs for contribution 23 under § 113(f).2 Third-party defendant cites Cal. Dep’t of Toxic 24 2 Two days after filing their pretrial statement, third- 25 party plaintiffs filed an “Addendum” in which they indicated that 26 they “augment[ed] their request for a jury and incorporate and join the reasons and authorities cited by the [third-party 27 defendant] County of Yolo in its Pre-Trial Statement.” (See Addendum to Pre-Trial Statement (Docket No. 230).) Though third- 28 party plaintiffs do not appear to have timely demanded a jury 4 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 76 of 97 1 Substances Control v. Jim Dobbas, Inc., No. 2:14–595 WBS EFB, 2 2014 WL 4627248 (E.D. Cal. Sep. 16, 2014) for the proposition 3 that CERCLA § 113(f) provides parties with a right to a trial by 4 jury. However, this court in Dobbas did not hold that the 5 plaintiff was entitled to a jury under CERCLA § 113(f). Rather, 6 this court merely held that it would be inappropriate to strike 7 the plaintiff’s jury demand at the pleading stage, noting that 8 the function of a Rule 12(f) motion to strike “is to avoid the 9 expenditure of time and money that must arise from litigating 10 spurious issues by dispensing with those issues prior to trial.” 11 See Dobbas, 2014 WL 4627248, at *6 ((quoting Sidney-Vinstein v. 12 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)). 13 Because striking a jury demand at the pleading stage 14 in Dobbas would not have saved the parties any time or money, the 15 court chose to err on the side of caution and preserved the 16 plaintiff’s right to demand a jury trial until the proper 17 occasion for the court to consider the issue. See id. 18 In this case, the issue of whether the parties are 19 entitled to a jury is now squarely before the court. The purpose 20 of a final pretrial conference to “formulate a trial plan,” 21 including whether the trial will proceed before a jury or before 22 the bench sitting without a jury. Fed. R. Civ. P. 16(e). Under 23 Rule 16, the court must now issue an order determining whether 24 the parties are entitled to a jury that will “control[] the 25 26 trial of their claim for contribution against third-party defendant under Rule 38 (see Am. Third-Party Compl. (Docket No. 27 116)), they do appear to have timely demanded a jury trial on third-party defendant’s counterclaim (see Answer to Counterclaim 28 (Docket No. 142)). See Fed. R. Civ. P. 38. 5 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 77 of 97 1 course of the action before it . . . .” Id.; see also Dream 2 Games of Ariz. v. PC Onsite, 561 F.3d 983, 996 (9th Cir. 2009) 3 (stating that, to prevent prejudice, parties are typically bound 4 by the pretrial order which “control[s] the subsequent course of 5 action unless modified” (quoting Fed. R. Civ. P. 16(e)); Pradier 6 v. Elespuru, 641 F.2d 808, 811 (9th Cir. 1981) (“The parties are 7 entitled to know at the outset of the trial whether the decision 8 will be made by the judge or the jury.”). 9 In the only appellate decision to have squarely 10 addressed the issue, Hatco Corp. v. W.R. Grace & Co. Conn., the 11 Third Circuit held that parties are not entitled to a jury trial 12 in suits brought under CERCLA § 113(f). See 59 F.3d 400, 414 (3d 13 Cir. 1995). The court reasoned that, because the “precipitating 14 claims under section 9607 are [also] primarily equitable in 15 nature,” and because § 9613(f)(1) requires courts to apportion 16 costs between the parties “using such equitable factors as the 17 court determines are appropriate,” a claim for contribution under 18 § 113(f) is essentially an equitable claim, under which no right 19 to a jury exists. See id. at 412-414 (citing United States v. 20 Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir. 21 1987) for the proposition that no right to a jury exists under 22 CERCLA § 107). 23 This court agrees with the Third Circuit’s reasoning. 24 In particular, the court is persuaded that the statute’s use of 25 the term “equitable factors as the court determines are 26 appropriate” is evidence that Congress--who was well aware that 27 juries were not traditionally a feature of equitable trials-- 28 likely intended to design a “flexible” remedy that would track 6 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 78 of 97 1 traditional equity practice and would “be based on circumstances 2 not cognizable in nor readily adapted to an action at law.” See 3 id.; 42 U.S.C. § 9613(f)(1). 4 The court further notes that the vast majority of 5 district courts to have considered the question have also found 6 that no right to a jury exists under CERCLA § 113(f). See, e.g., 7 Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. 8 Supp. 2d 1028, 1047 (C.D. Cal. 2002); Zuckerman, Bois II & 9 Johnson, Common law toxic tort actions--Background, Envtl. 10 Liability Allocation L. & Prac. § 9:2 n.4 (2020-2021) (noting 11 that Hatco’s holding that no jury trial is available under CERCLA 12 § 113(f) “has . . . been universally accepted”). In fact, the 13 court has not found a single example of a case in which a 14 district court has tried a CERCLA § 113(f) claim before a jury 15 since the Third Circuit’s decision in Hatco. 16 When asked at the final pretrial conference to 17 identify case law in support of the proposition that § 113(f) 18 provides the right to a jury trial beyond the district court’s 19 ruling in Dobbas, third-party defendant pointed only to footnote 20 9 in Hatco, which cites to three district court cases for the 21 proposition that “district courts have reached conflicting 22 results on the issue.” See Hatco, 59 F.3d at 412 n.9 (citing 23 American Cyanamid Co. v. King Indus., Inc., 814 F. Supp. 209, 24 213–15 (D.R.I. 1993); Wehner v. Syntex Corp., 682 F. Supp. 39, 25 39–40 (N.D. Cal. 1987); United States v. Shaner, No. 85–1372, 26 1992 WL 154618, at **2–4 (E.D. Pa. June 15, 1992)). 27 Only one of those cases actually held that CERCLA § 113 28 provides parties with the right to a jury trial, see Shaner, 1992 7 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 79 of 97 1 WL 154618, at *3 (“[T]he Court concludes that CERCLA § 113 2 contribution actions are legal in nature and thus create an 3 implicit right to jury trial.”), and that decision was implicitly 4 overruled when the Third Circuit unequivocally held that claims 5 brought pursuant to CERCLA § 113(f) are equitable in nature and 6 do not provide a right to a jury trial. See Hatco, 59 F.3d at 7 414. 8 Therefore, because the court agrees with the Third 9 Circuit’s reasoning in Hatco, and because there does not appear 10 to have been any intervening change in law since that decision 11 was issued, the court finds that the parties are not entitled to 12 a jury trial under CERCLA § 113(f). Third-party plaintiffs’ and 13 third-party defendant’s claims for contribution under CERCLA 14 § 113(f) will therefore be tried before the court, sitting 15 without a jury.3 16 3 The fact that both parties to defendant’s claims for contribution have demanded a jury trial under § 113(f) does not 17 change the court’s analysis. Under Federal Rule of Civil 18 Procedure 39(c)(2), in “an action not triable of right by a jury, the court, on motion or on its own may, with the parties’ 19 consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the 20 action is against the United States and a federal statute provides for a nonjury trial.” While this Rule “permits both 21 sides to stipulate to a jury trial . . . a district court does 22 not have to go along with the stipulation.” Hildebrand v. Board of Trustees of Mich. State Univ., 607 F.2d 705, 711 (6th Cir. 23 1979) (citing Fed. R. Civ. P. 39(c)); Merex A.G. v. Fairchild Weston Systems, Inc., 29 F.3d 821, 827 (2d Cir. 1994) (“[W]hen 24 both parties consent, Rule 39(c) invests the trial court with the discretion--but not the duty--to submit an equitable claim to the 25 jury for a binding verdict. While the litigants are free to 26 request a jury trial on an equitable claim, they cannot impose such a trial on an unwilling court.”); Universal Elecs., Inc. v. 27 Universal Remote Control, No. SACV 12-00329 AG (JPRx), 2014 WL 12587050 (C.D. Cal. Dec. 16, 2014) (same) (citing Merex, 29 F.3d 28 at 827)). 8 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 80 of 97 1 C. Third-Party Defendant’s Public Nuisance Counterclaim 2 The only remaining claim for which a party has demanded 3 a jury trial is the third-party defendant’s counterclaim against 4 third-party plaintiffs for damages under California public 5 nuisance law. No party has presented any argument that the 6 county is not entitled to a jury on this claim. 7 The court will not be able to empanel a jury in March 8 of 2021 due to the COVID-19 pandemic. The pandemic has caused 9 our courthouse to be closed to the public since March of 2020. 10 See Eastern District of California General Orders 611, 612, 618. 11 Now, nearly ten months later, it is fair to say that the 12 circumstances necessitating the closure have only gotten worse. 13 At this point in time it is impossible to predict with any degree 14 of confidence when this court will be able to begin jury trials 15 again, and when jury trials do resume criminal cases will have to 16 take precedence over civil cases such as this one.4 17 Accordingly, the trial of the claims between third- 18 party plaintiffs and third-party defendant will be postponed and 19 reset at a subsequent date, if and when the court is able to 20 In light of the fact that Congress, in enacting CERCLA § 113(f), intended to provide the court with a flexible remedy 21 under which it could apply such equitable factors as it 22 determines are appropriate, see Hatco, 59 F.3d at 412-14, and in light of the present unavailability of jury trial due to the 23 COVID-19 pandemic, see section II.C, infra, the court will not exercise its discretion under Rule 39(c) to try the parties’ 24 equitable claims for contribution under § 113(f) to a jury. See Merex, 29 F.3d at 827. 25 4 For a discussion of the difficulties in even attempting 26 to empanel a jury in this district under the current circumstances, see this court’s Order in United States v. Sheikh, 27 No. 2:18-CR-00119 WBS, 2020 WL 5995226, at **1-2 (E.D. Cal. Oct. 9, 2020). 28 9 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 81 of 97 1 resume jury trials in civil cases. See Fed. R. Civ. P. 42(b) 2 (authorizing the court to order a separate trial of one or more 3 separate issues, claims, crossclaims, counterclaims, or third- 4 party claims “[f]or convenience, to avoid prejudice, or to 5 expedite or economize”).5 6 III. Proposed Findings of Fact and Conclusions of Law and Form of 7 Judgment 8 No later than fourteen court days before the trial 9 date, plaintiffs shall lodge and serve the Findings of Fact and 10 Conclusions of Law and form of judgment which they propose to be 11 entered at the conclusion of the trial pursuant to Federal Rule 12 of Civil Procedure 52. No later than seven court days before 13 trial, defendants shall lodge and serve the Findings of Fact and 14 Conclusions of Law and form of judgment which they propose be 15 entered. 16 IV. Trial Briefs 17 According to the briefing schedule listed below, the 18 parties shall submit briefs on the following issue: whether, 19 during a trial solely of the claims brought by plaintiffs against 20 defendants (i.e., excluding the third-party claims under CERCLA § 21 113(f) for contribution brought by third-party plaintiffs and 22 third party defendant), the court will have to consider the 23 24 5 If third-party defendant County of Yolo decides to withdraw its demand for a jury trial on its public nuisance claim 25 and notifies the court and the other parties by January 8, 2021, 26 the court will try the third-party claims between defendants and the County of Yolo at the same time that it tries plaintiffs’ 27 claims against defendants, on March 9, 2021. Should third-party defendant withdraw its demand for a jury trial, the court will 28 amend this Pretrial Order accordingly. 10 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 82 of 97 1 question of how to equitably apportion cleanup costs between the 2 defendants and all other parties, including predecessors at the 3 Site and third-party defendant County of Yolo. 4 • January 14, 2021: Deadline for defendants R&L, 5 Smith, and Clark, as well as third-party defendant 6 County of Yolo, to submit their opening briefs 7 • January 21, 2021: Deadline for plaintiffs to submit 8 their response brief 9 • January 26, 2021, at 10:00 a.m.: Hearing on the 10 parties’ briefs, to be conducted over Zoom 11 No later than fourteen calendar days before the trial 12 date, counsel for each party shall file any additional trial 13 briefs pursuant to Local Rule 285. Because this action is to be 14 tried before the court sitting without a jury, motions in limine 15 are not appropriate. However, counsel may alert the court to any 16 legal issues they anticipate will need to be addressed in their 17 respective trial briefs. No later than five court days before 18 trial, the parties may file responses to the other side’s trial 19 briefs. 20 V. Remaining Claims 21 In addition to their CERCLA claim, plaintiffs assert a 22 claim under California public nuisance law against defendants 23 R&L, Smith, and Clark. The City also asserts a claim under the 24 Porter Cologne Water Quality Control Act, Cal. Water Code § 25 13304(c), against R&L, Smith, and Clark. The parties agree that 26 only the causation element of each claim remains to be tried 27 along with the remedies of injunctive relief on the nuisance 28 claim and cost recovery on the Porter-Cologne Act claim. 11 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 83 of 97 1 The City also asserts claims under RCRA, 42 U.S.C. 2 § 6972(a)(1)(B), and the Gatto Act, Cal. Health & Safety Code §§ 3 25403.1, 25403.5, against R&L and Smith. The parties agree that 4 the only remaining element of the City’s RCRA claim that remains 5 to be tried is the presence of an imminent and substantial 6 endangerment to human health or the environment along with the 7 remedy of injunctive relief. See 42 U.S.C. § 6972(a)(1)(B). The 8 parties also agree that the only aspects of the City’s Gatto Act 9 claim that remain to be tried are the remedies of cost recovery 10 and injunctive relief. See Cal. Health & Safety Code §§ 25403.1, 11 25403.5. 12 The court has already ruled that defendants are jointly 13 and severally liable to the City under CERCLA § 107(a). (See 14 Docket No. 125.) The parties disagree as to whether the court 15 still must determine the defendants’ equitable share of the 16 cleanup costs as to other parties, including predecessors at the 17 Site and third-party defendant County of Yolo, prior to the trial 18 of the third-party claims between defendants and the County. If 19 the court is satisfied, based on the parties’ briefing, see 20 section IV, supra, that the court must equitably apportion 21 cleanup costs prior to trial of the third-party claims, it will 22 do so at the trial between plaintiffs and defendants on March 9, 23 2021. 24 The court has also ruled that defendants are liable 25 under the Carpenter-Presley-Tanner Hazardous Substance Account 26 Act (“HSAA”), Cal. Health & Safety Code § 25363(d). (See Docket 27 No. 225.) The court must still determine the amount of costs to 28 which the City is entitled under CERCLA § 107 and the HSAA. 12 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 84 of 97 1 The parties agree that there are no issues remaining to 2 be tried on the City’s declaratory relief claim against defendants 3 under CERCLA § 113(g)(2). The court’s findings after trial will 4 therefore include a judgment declaring that defendants are liable to 5 the City under CERCLA § 113(g)(2) in any subsequent action for 6 recovery of response costs the City incurs in the future. Any 7 defenses to the amount or the nature of any response costs, 8 including whether those responses costs were incurred consistent 9 with existing law, are reserved for an appropriate time. 10 The parties agree that plaintiffs have abandoned their 11 trespass and ultrahazardous activity claims against defendants, 12 as well as their prayer for damages under their public nuisance 13 claim. 14 There is one party in default, Urban Farmbox, LLC. As 15 plaintiffs represent that little evidence is needed for prove-up, 16 the court will permit evidence as to Urban Farmbox’s liability to 17 be presented at trial, rather than at a separate hearing or 18 through motion practice after trial. 19 Defendants, as third-party plaintiffs, assert a claim 20 for contribution against third-party defendant under CERCLA 21 § 113(f), 42 U.S.C. § 9613(f)(1). Third-party defendant asserts 22 counterclaims for contribution against third-party plaintiffs 23 under CERCLA § 113(f), 42 U.S.C. § 9613(f)(1), and the HSAA, Cal. 24 Health & Safety Code § 25363(d), and common law contribution and 25 indemnity, as well as counterclaims against third-party 26 plaintiffs under California law for continuing public nuisance, 27 negligence, and negligence per se. As discussed above, see 28 section II.C, supra, the court will try these third-party claims 13 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 85 of 97 1 separately, at a later date. 2 Accordingly, plaintiffs’ claims against defendants 3 under (1) California public nuisance law; (2) the Porter-Cologne 4 Water Quality Control Act; (3) RCRA; and (4) the Gatto Act will 5 be tried on March 9, 2021. The court will also determine the 6 amount of costs to which plaintiffs are entitled under CERCLA 7 § 107 and the HSAA § 25363(d), enter an order granting 8 declaratory relief under CERCLA § 113(g)(2), determine 9 defendants’ equitable share of the cleanup costs as to 10 predecessors and the County of Yolo (if warranted), and hear 11 plaintiffs’ evidence regarding Urban Farmbox, LLC’s default at 12 the March 9th trial. All third-party claims between defendants 13 and third-party defendant Yolo County under CERCLA § 113, the 14 HSAA, common law contribution and indemnity, public nuisance, 15 negligence, and negligence per se will be postponed and tried 16 separately, at a later date. 17 VI. Witnesses 18 (A) Plaintiffs anticipate calling the witnesses 19 identified at Exhibit “A” attached hereto. 20 (B) Defendants and Third-Party Plaintiffs R&L, Clark, 21 and Smith anticipate calling the witnesses identified at Exhibit 22 “B” attached hereto. 23 (C) Third-party Defendant County of Yolo anticipates 24 calling the witnesses identified at Exhibit “C” attached hereto. 25 (D) Except for retained experts, each party may call 26 any witness designated by any other party. 27 (E) No other witnesses will be permitted to testify at 28 trial unless: 14 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 86 of 97 1 (1) all parties stipulate that the witness may 2 testify; 3 (2) the party offering the witness demonstrates 4 that the witness is for the purpose of rebutting evidence which 5 could not have been reasonably anticipated at the time of the 6 Pretrial Conference; or 7 (3) the witness was discovered after the Pretrial 8 Conference. 9 (F) Testimony of a witness not designated in this 10 Order, which is offered under paragraph VI(E)(3), above, upon the 11 grounds that the witness was discovered after the Pretrial 12 Conference, will not be permitted unless: 13 (1) the testimony of the witness could not 14 reasonably have been discovered prior to the Pretrial Conference; 15 (2) the court and opposing counsel were promptly 16 notified upon discovery of the testimony; and 17 (3) counsel proffered the witness for deposition 18 if time permitted or provided all opposing counsel a reasonable 19 summary of the testimony if time did not permit a deposition. 20 (G) Plaintiffs and defendants have agreed to submit 21 Dr. Adam Love and Dr. Anne Farr’s CVs and/or resumes to the court 22 in lieu of establishing their qualifications via testimony at 23 trial. 24 VII. Exhibits 25 (A) Plaintiffs intend to offer the exhibits identified 26 at Exhibit “D” attached hereto. 27 (B) Defendants and Third-Party Plaintiffs R&L, Clark, 28 and Smith intend to offer the exhibits identified at Exhibit “E” 15 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 87 of 97 1 attached hereto. 2 (C) Third-party Defendant County of Yolo intends to 3 offer the exhibits identified at Exhibit “F” attached hereto. 4 (D) Each party may offer any exhibit designated by any 5 other party. 6 (E) No other exhibits will be received in evidence 7 unless: 8 (1) all parties stipulate that the exhibit may be 9 received in evidence; 10 (2) the party offering the exhibit demonstrates 11 that the exhibit is for the purpose of rebutting evidence which 12 could not have been reasonably anticipated at the time of the 13 Pretrial Conference; or 14 (3) the exhibit was discovered after the Pretrial 15 Conference. 16 (F) An exhibit not designated in this Order, which is 17 offered under paragraph VII(E)(3), above, upon the grounds that 18 the exhibit was discovered after the Pretrial Conference, will 19 not be received in evidence unless: 20 (1) the exhibit could not reasonably have been 21 discovered prior to the Pretrial Conference; 22 (2) the court and opposing counsel were promptly 23 notified upon discovery of the exhibit; and 24 (3) counsel provided copies of the exhibit to all 25 opposing counsel if physically possible or made the exhibit 26 reasonably available for inspection by all opposing counsel if 27 copying was not physically possible. 28 (G) Each party shall exchange copies of all exhibits 16 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 88 of 97 1 identified in this Order, or make them reasonably available for 2 inspection by all other parties, no later than seven calendar 3 days before the trial date. Any and all objections to such 4 exhibits shall be filed and served not later than four calendar 5 days before the trial date. 6 (H) The attorneys for plaintiffs and defendants are 7 directed to submit an electronic copy of each exhibit to Deputy 8 Clerk Karen Kirksey Smith at 8:30 a.m. on the date of trial. As 9 discussed at the final pretrial conference, the parties are also 10 directed to submit physical copies of (1) any exhibit a witness 11 is likely to be asked about, (2) each witness’ own deposition 12 transcript, and (3) if the witness testified at the evidentiary 13 hearing on divisibility, a transcript of their testimony to that 14 witness in advance of trial. 15 (I) Each exhibit which has been designated in this 16 Order and presented on the morning of the date of trial shall be 17 pre-marked by counsel. Plaintiffs’ exhibits shall bear numbers; 18 defendants and third-party plaintiffs’ exhibits shall bear 19 letters; third-party defendants’ exhibits shall bear numbers 20 beginning with number 301. If no objection has been made to such 21 exhibit pursuant to paragraph VII(F), above, such exhibit will 22 require no further foundation and will be received in evidence 23 upon the motion of any party at trial. 24 VIII. Further Discovery and Motions 25 No further motions shall be brought before trial except 26 upon order of the court and upon a showing of manifest injustice. 27 Fed. R. Civ. P. 16(e). No further discovery will be permitted 28 except by the express stipulation of all parties or upon order of 17 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 89 of 97 1 the court and upon a showing of manifest injustice. Id. 2 IX. Date and Length of Trial 3 The trial is set for March 9, 2021 at 9:00 AM. The 4 trial on plaintiffs’ claims will occur via videoconference over 5 Zoom. The court estimates that trial will last approximately 3 6 to 4 court days. 7 X. Settlement 8 The parties are willing to participate in a pretrial 9 settlement conference. Accordingly, a settlement conference is 10 set before Magistrate Judge Edmund F. Brennan on February 11, 11 2021, at 10:00 a.m. via Zoom. Further information regarding 12 appearances at the settlement conference will be provided by the 13 courtroom deputy for Magistrate Judge Brennan. Each party is 14 ordered to have a principal with full settlement authority 15 present at the settlement conference or to be fully authorized to 16 settle the matter on any terms. 17 No later than 12:00 p.m. on February 4, 2021, counsel 18 for each party shall submit a Confidential Settlement Conference 19 Statement via email to EFBorders@caed.uscourts.gov. The parties 20 may agree, or not, to serve each other with the Confidential 21 Settlement Conference Statements. The Confidential Settlement 22 Conference Statements shall not be filed with the clerk and shall 23 not otherwise be disclosed to the trial judge. However, each 24 party shall e-file a one-page document entitled “Notice of 25 Submission of Confidential Settlement Conference Statement.” 26 XI. Objections to Pretrial Order 27 Any objections or suggested modifications to this 28 Pretrial Order shall be filed and served within five court days 18 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 90 of 97 1 from the file-stamped date of this Order. All references herein 2 to the date of this Order shall refer to the date the tentative 3 order is filed and not to the date any amended order is filed. 4 If no objections or modifications are made, this Order will 5 become final without further order of the court and shall control 6 the subsequent course of the action, pursuant to Rule 16(e) of 7 the Federal Rules of Civil Procedure. 8 Dated: January 26, 2021 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 91 of 97 1 Exhibit A: Plaintiffs’ Witnesses 2 1. Aaron Laurel – City of West Sacramento City Manager 3 2. Anne Farr, Ph.D. – expert 4 3. Andrew Reimanis – expert 5 4. Dan Gallagher - expert 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 92 of 97 1 Exhibit B: Defendants and Third-Party Plaintiffs’ Witnesses 2 1. Dr. Adam Love 3 2. Dr. Anne Farr 4 3. Daniel Gallagher 5 4. Andrew Reimanis 6 5. Aaron Laurel 7 6. John Clark 8 7. Richard Leland 9 8. Diane Richards 10 9. Heather Lanctot 11 10. Joseph Turner 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 93 of 97 1 Exhibit C: Third-Party Defendant’s Witnesses 2 1. Joseph Turner, PG, CHG – County’s Expert, Geosyntec 3 Consultants Inc., 3043 Gold Canal Drive, Suite 100, Rancho 4 Cordova, CA 95670 5 2. Heather Lanctot – County’s Person Most Knowledgeable 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 94 of 97 1 Exhibit D: Plaintiffs’ Exhibits 2 1. Plaintiffs incorporate the exhibits already admitted into 3 evidence at the evidentiary hearing as identified by the 4 court. (Dkt. No. 193-1.) 5 2. Regular Meeting of the City of West Sacramento City Council, 6 Redevelopment Successor Agency, and West Sacramento 7 Financing Authority Minutes dated October 18, 2017 8 (WESTSAC0020406-20408) 9 3. Notice of Endangerment to R and L Business Management dated 10 October 27, 2017 (WESTSAC0020398-20401) 11 4. Notice of Endangerment to Nick E. Smith, Deceased ex rel. 12 Royal Insurance Company dated October 27, 2017 13 (WESTSAC0020402-20405) 14 5. SWCRB Memo re PFAS at chrome plating shops (SWCRB0000001-27) 15 6. DTSC Imminent and Substantial Endangerment Determination and 16 Order and Remedial Action Order dated May 6, 2020 17 7. Letter from R&L to DTSC re Imminent and Substantial 18 Endangerment Determination and Order and Remedial Action 19 Order dated June 26, 2020 20 8. Health Based Risk Assessment with PRGs and Fate and 21 Transport Evaluation for Former Capitol Plating Facility by 22 Clint Skinner Ph.D. dated September 18, 2001 (DTSC0002231- 23 2348) 24 9. Resume of Andrew Reimanis 25 10. The City’s invoices relating to investigating the Site and 26 protecting the public 27 11. Yolo County Recorder Documents related to Property ownership 28 12. The Installment Note for the Property 23 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 95 of 97 1 2 Exhibit E: Defendants and Third-Party Plaintiffs’ Exhibits 3 Defendants represent that they do not intend to 4 introduce any evidence beyond that introduced at the evidentiary 5 hearing in their defense against the City’s claims. 6 As to their claim against third-party defendant, third- 7 party plaintiffs incorporate their exhibits offered in opposition 8 to third-party defendant’s motion for summary judgment by 9 reference. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 96 of 97 1 2 Exhibit F: Third-Party Defendant’s Exhibits 3 1. Property ownership documents and parcel maps for 305, 317, 4 and 319 3rd Street, and 221/ 225 C Street 5 2. Expert and Rebuttal Reports of Anne Farr (City) 6 3. Expert and Rebuttal Reports of Adam Love (R&L) 7 4. Rebuttal Expert Report of Joseph Turner (County) 8 5. To the extent the Exhibits submitted in the briefing of the 9 County’s Motion for Summary Judgment (ECF 207), and 10 Opposition thereto (ECF 213), are not listed above, the 11 County includes: 12 a) Exhibits to Declaration of Jennifer Hartman King in 13 Support of Motion for Summary Judgment (ECF 207-5) 14 b) Exhibits to Declaration of Alanna Lungren in Support of 15 Motion for Summary Judgment (ECF 207-6) 16 c) Exhibits A through E of R&L’s Opposition to County of 17 Yolo’s Motion for Summary Judgment (ECF 213-3 – 213-8) 18 6. 2000 Advanced GeoEnvironmental, Inc., Additional Subsurface 19 Investigation 20 7. 2004 URS, Former Capitol Plating Site - Site Summary 21 Investigation Report 22 8. 2004 URS, Former Capitol Plating Site - Preliminary Cost 23 Analysis Report 24 9. 2006 Wallace Kuhl & Associates Inc., Shallow Soil 25 Investigation Report of Findings 26 10. 2007 Wallace Kuhl & Associates Inc., All Appropriate 27 Inquiries Report 28 25 Case 2:18-cv-00900-WBS-JDP Document 283 Filed 03/10/21 Page 97 of 97 1 11. 2007 Kleinfelder, Sampling and Analysis Plan – Phase II 2 Environmental Site Assessment Washington Firehouse 3 12. 2008 Kleinfelder, Phase II Environmental Assessment Report – 4 Firehouse Block Site 5 13. 2010 Department of Toxic Substances Control, Draft Report – 6 Phase II Environmental Assessment Report Firehouse Block 7 Site 8 14. 2020 Roux, Sampling and Analysis Plan (and subsequent 9 revised sampling maps) 10 15. 2020 DTSC, Imminent and Substantial Endangerment 11 Determination and Order and Remedial Action Order 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26