Jump to Navigation
Jump to Content

Zands v. Nelson

ELR Citation: 23 ELR 20340
Nos. Nos. 89-0989-GT, 90-1144-GT, 797 F. Supp. 805/35 ERC 1472/(S.D. Cal., 06/25/1992) Summary judgment motions, bifurcation

The court denies motions for summary judgment in a Resource Conservation and Recovery Act (RCRA) citizen suit, because genuine issues of material fact exist as to whether the prior owners of property and the operators of a gasoline station on that property contributed to soil contamination under RCRA by operating the station. The court first holds that leaking gasoline at the station created "solid waste" within the meaning of RCRA, permitting an action against any person who has contributed to the handling, storage, treatment, transportation, or disposal of the leaked gasoline. The court holds that the current landowners may prevail on a RCRA §7002(a)(1)(B) claim, because there is an imminent and substantial endangerment to health or the environment as a result of the contamination. The court also holds that a genuine issue of fact exists as to the owners' and operators' contribution to the contamination. The court holds that the contamination was caused by gasoline that came from the ownership and operation of the station, and that prior owners of the land and operators of the station could be held liable to current landowners only for the portion of soil contamination that occurred prior to the transfer of the property to the current owners. The court next applies an alternative liability scheme to the tortious conduct of owning the land and operating the station. The court holds that where the current owners can identify a period of time within which contamination occurred, for which owners of the land or operators of the station are strictly liable for that contamination, but cannot prove which owner/operator caused the contamination because more than one owned the property and operated the station during the relevant period, the court will shift to each prior post-tank installation owner or operator the burden of showing that no contamination occurred during that individual's period of ownership and operation. This shifts liability to the liable prior owners and operators. The court also holds that an installer of the station's piping system is not liable under RCRA for contributing to the contamination, unless a defect is shown in the installation of the piping. Mere installation of the piping system is not tortious conduct under the alternative liability theory. Moreover, the installation of the piping does not permit the burden of proof to be shifted to an installer to show that he did not install a defective product. Finally, the court orders bifurcation as to the element of contribution. The first stage will resolve the issue of contribution and focus on (1) whether any contamination occurred prior to the transfer of the property to the current landowners, and (2) if so, how much contamination occurred after that transfer. The second stage will provide each prior owner/operator the opportunity to shift liability to the remaining owners/operators.

[A previous decision in this case is published at 22 ELR 20757.]

Counsel for Plaintiffs
Harry V. McGahey
McGahey & McGahey
8910 University Ctr. La., Ste. 300, San Diego CA 92122
(619) 597-2444

Counsel for Defendants
John H. Stephens, Lynn M. Beekman
Robbins & Keehn
530 B St., Ste. 1700, San Diego CA 92102
(619) 232-1700