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Carson Harbor Village, Ltd. v. Unocal Corp.

Citation: 28 ELR 21201
No. CV-96-3281, 990 F. Supp. 1188/(C.D. Cal., 11/04/1997)

The court dismisses a property owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Federal Water Pollution Control Act (FWPCA), and state common-law claims against prior owners of the property and a state agency for reimbursement of the costs of removing tar-like and slag materials from the property. However, the owner's trespass and nuisance claims against the prior owners' former tenant, who allegedly dumped the materials on the property, survive a motion for summary judgment. The court first holds that the owner failed to establish that the remediation was necessary and thus recoverable under CERCLA, because the evidence is insufficient to support a finding that a threat existed at the time of the remediation. The court alternatively holds that the prior owners are entitled to summary judgment because the current owners adduced insufficient evidence that the prior owners are potentially responsible parties, which is a critical element of any CERCLA claim. Rejecting the passive migration theory, the court holds that disposal warranting CERCLA liability requires a showing that hazardous substances were affirmatively introduced into the environment. Thus, without the aid of the passive migration theory, the owner's claim that prior owners were owners of the facility at the time of disposal fails as a matter of law. The court also holds that the owner failed to present evidence sufficient to establish that stormwater containing lead ran through the property while owned by the prior owners. Evidence of the condition of the stormwater today is inadequate to prove CERCLA lability against the prior owners.

The court next holds that the state agency is entitled to summary judgment on the RCRA claims. The evidence shows that at the time the suit was filed, there was no imminent danger on the property. Likewise, the court dismisses the owner's FWPCA claims against the agency. The agency was issued national pollutant discharge elimination system (NPDES) permits allowing the discharge of stormwater containing pollutants in 1990 and 1996. And the owner's evidence falls short of meeting its burden that the agency violated either of these permits.

As for the owner's state-law claims, the court also holds that the agency is entitled to summary judgment. The state civil code precludes state-law claims against the state government, and nothing that is done under the express authority of a statute can be deemed a nuisance. Because the owner has not shown that the agency failed to comply with its NPDES permits, any pollutants discharged into the stormwater were allowed under the authority of the state. The court, however, further holds that the owner raised genuine issues of material fact with regard to its nuisance and trespass claims against the former tenant. The owner offered evidence that tar-like and slag materials were deposited before 1947, and the tenant held a leasehold on the property between 1945 and 1983. While this is a narrow window, the possibility does exist that the tenant negligently allowed the materials to be dumped during this time. In addition, state law permits the current owner to bring an action for trespass against a tenant who leased the property from prior owners and who contaminated the property during the term of the leasehold.

Last, the court holds that the prior owners are entitled to summary judgment as a matter of law on the owner's claim for express indemnity. The owner's reliance on the purchase and sale agreement fails, because the owner was explicitly not required by the state environmental agency to remove the hazardous materials from the property. Similarly, the owner's reliance on a restrictive covenant that precludes the dumping of waste in a 1977 grant deed fails. The deed restrictions run with the land, thus, the obligation was specifically assumed by the owner when it took title. Moreover, because the indemnity clause includes only those obligations not specifically assumed by the owner, the deed restriction cannot give rise to indemnity.

Counsel for Plaintiff
Douglas L. Carden
Shapiro, Rosenfeld & Close
One Century Plaza
2029 Century Park E., Ste. 2600, Los Angeles CA 90067
(310) 277-1818

Counsel for Defendants
Charles A. Jordan
Holley & Galen
800 S. Figueroa St., Ste. 1100, Los Angeles CA 90017
(213) 629-1880