City of West Sacramento v. R & L Business Management ( 2019 )

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 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. 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 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 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 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 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 discuss the issue. See Defs.’ Opp. to Mot. for Summ. J. at 6 26 (“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.”). 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 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 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,” Alcan, 964 F.2d at 269, and apportionment methods “vary 26 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 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 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 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 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 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. 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 temas, Ws dhasrmm 26 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 27 28 16