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22 ELR 20773 | Environmental Law Reporter | copyright © 1992 | All rights reserved Transportation Leasing Co. v. CaliforniaNo. CV 89-7368-WMB (C.D. Cal. September 24, 1991)The court holds that a municipality that contracted for the disposal of residential waste at the Operating Industries site in Monterey Park. California, may have incurred arranger liability under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and factual issues remain about whether the municipality's exercise of control over the disposal of residential refuse at the site constitutes ownership or possession. Sixty four industrial companies that entered into a consent decree requiring them to perform remedial actions at the Operating Industries site seek reimbursement against 29 nonsettling municipal defendants. The court first finds that a release of a hazardous substance occurred at the site and that the companies have incurred the necessary costs of response consistent with the CERCLA national contingency plan. The court next holds that the municipality's contract for the transportation and disposal of its residential waste constituted an arrangement for disposal within the meaning of CERCLA § 107(a)(3). The court holds that material issues of fact exist as to whether the residential waste deposited at the site contained hazardous substances and whether the municipality arranged the disposal of hazardous substances at the site. The court further holds that the companies may not be relieved from their burden of proving that the municipality arranged the disposal of wastes that it owned or possessed, since case law demonstrates that ownership or possession of hazardous substances is an element of CERCLA arranger liability. However, the court notes that the requirement may be satisfied by a showing of constructive, rather than actual, ownership or possession. The court holds that the municipality's control over the contractor's disposal of the waste is an open issue of fact. Finally, the court holds that the companies' amended complaint for contribution from six county disposal districts is not time-barred. [A previous decision in this case is published at 21 ELR 20826.] Counsel for Plaintiffs Counsel for Defendants David J. Prager Mitchell E. Abbott, Thomas M. Jimbo, David P. Waite This action arises out of efforts to clean up hazardous substances at a facility in Monterey Park, California, known as the Operating Industries, Inc. ("OII") landfill. Plaintiffs are some 64 industrial companies who disposed of large quantities of hazardous substances at the OII landfill between 1974 and 1984. In 1988, the United States Environmental Protection Agency ("EPA"), the State of California ("CalTrans") (on behalf of the Department of Health Services), and the California Hazardous Substance Account sued a number of parties, including plaintiffs in this action, alleging that those parties were liable to perform certain remedial actions at the OII landfill and to reimburse the United States and the State of California for response costs incurred in abating various hazardous conditions at the landfill. The claims in the 1988 action were settled in a Partial Consent Decree entered on May 11, 1989. Under the terms of the Decree, plaintiffs here agreed to perform certain work at the OII landfill and to pay approximately $61,000,000 to the EPA and the State of California. However, plaintiffs expressly reserved the right to assert claims for reimbursement or indemnification against other potentially liable persons who were not signatories of the Decree. Plaintiffs now assert that right by bringing this action against twenty-nine municipal defendants (Cities), the County of Los Angeles, and CalTrans. Plaintiffs seek to recover from these defendants a fair share of the costs incurred pursuant to the Partial Consent Decree, on the grounds that (1) defendants either owned, operated, or utilized the OII landfill, and (2) defendants were not signatories of the Decree. On July 16, 1990, the Court granted the municipal defendants' motion to dismiss the pendent state claims. The only claims remaining in this action are the first and the second claims under CERCLA, and that part of the fifth claim under the Declaratory Judgments Act. The twenty-nine defendant Cities subsequently moved the Court for an order specifying that the following facts and issues were without substantial controversy: 1. The issuance of business licenses by defendant Cities to independent waste haulers to enable them to conduct business within the city limits does not constitute an "arrangement for disposal of hazardous substances" as contemplated by § 107(a)(3) CERCLA; 2. Rubbish generated by residences and businesses within the city limits of defendant Cities that was collected by independent waste haulers operating pursuant to business licenses, franchises, or contracts issued by defendant Cities was not "owned or possessed" by defendant Cities within the contemplation of § 107(a)(3) of CERCLA; 3. The issuance of business licenses or franchises by defendant Cities to independent waste haulers to enable them to collect rubbish from residences and businesses located within the city limits constitutes an exercise of the police power to protect the public health and safety, and does not constitute an "arrangement for the disposal of hazardous substances" under § 107(a)(3) of CERCLA; and 4. Rubbish generated by residences and businesses located within the city limits of defendant Cities is not a "hazardous substance" within the contemplation of CERCLA absent specific evidence that the particular rubbish generated by those residences and businesses that was disposed of at the OII landfill site contained "hazardous substances," as defined by § 101(14) of CERCLA. On December 5, 1990, the Court issued an Order denying in part and granting in part defendant Cities' motion for an order specifying issues without substantial controversy. The Court denied defendants' motion on Issue Numbers I through 3, because it would have required the Court to issue an advisory opinion. The Court granted defendants' motion with respect to Issue Number 4, only to the extent that it sought a ruling that for arranger liability, plaintiffs must prove that the waste disposed of at the OII landfill contained "hazardous substances" under CERCLA. The Court further found that § 101(14) of CERCLA, 42 U.S.C. § 9601(14) does not expressly exempt from liability the disposal of household wastes. Plaintiffs subsequently moved for leave to amend their complaint, in order to name as additional defendants six Los Angeles County Garbage Disposal Districts. On February 25, 1991, the Court granted plaintiffs' motion. Currently before the Court is plaintiffs' motion for an order specifying that the following eight issues are without substantial controversy and are deemed established: 1. A "release of a "hazardous substance," as those terms are defined in CERCLA sections 101(14) and 101(22), 42 U.S.C. §§ 9601(14) and 9601(22), has occurred at the OII landfill; 2. In connection with the OII Site, plaintiffs have incurred "necessary costs of response" that are "consistent with the national contingency plan," within the meaning of CERCLA section 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B); 3. By contracting with Athens Disposal Company ("Athens") for the collection and disposal of the waste of city residents, defendant City of Alhambra "by contract, agreement, or otherwise arranged for disposal . . . or arranged with a transporter for transport for disposal" of that residential waste, within the meaning of CERCLA section 107(a)(3), 42 U.S.C. § 9607(a)(3); 4. Household waste from Alhambra residents, collected and disposed of through Alhambra's arrangements, was deposited at the OII site and contained one or more "hazardous substances," as defined by CERCLA section 101(14), 42 U.S.C. § 9601(14); 5. The OII Site contains hazardous substances of the type for which Alhambra arranged disposal; 6. Liability under section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), does not require proof that the hazardous substances of which defendant arranged disposal were "owned or possessed" by defendant; 7. Within the meaning of CERCLA section 107(a)(3), 42 U.S.C. § 9607(a)(3), Alhambra "owned or possessed" residential waste for which it arranged disposal at the OII Site by virtue of Alhambra's exercise of authority and control over the waste1; and 8. Alhambra is "liable," within the meaning of CERCLA sections 107(a) and 113(f)(1), 42 U.S.C. §§ 9607(a) and 9613(f)(1), as a result of contracting for the disposal of residential waste that contained hazardous substances deposited at the OII Site. Defendant Cities and the County of Los Angeles filed briefs in opposition to plaintiffs motion2: defendant CalTrans joined in their oppositions. Some of the defendants have filed a motion to dismiss plaintiffs' claims against the GDDs. This motion is also before the Court. A. Plaintiffs' Motion for An Order Specifying Issues to be Without Controversy Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. R. 56(c). Facts are deemed "material" if a dispute over them "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Id. at 2514. If the moving party satisfies this burden, the party opposing the motion must set forth specific facts showing that there remains a genuine issue for trial. Fed. R. Civ. P. 56(e). Such an issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Anderson, 106 S. Ct. at 2510. This burden to demonstrate a genuine issue of fact increases where the factual context makes the non-moving party's claim implausible. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). Thus, mere disagreement or the bald assertion of the existence of a genuine issue of material fact does not preclude summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). 2. The relevance of the issues Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), provides that "(a)ny person may seek contribution from any other person who is liable or potentially liable under section 107(a), during or following any civil action under section 106 or under 107(a)." Plaintiffs seek to proceed pursuant to this latter section in an effort to obtain cost recovery against defendant Cities. To prevail in this private cost recovery action under Section 107(a), plaintiffs must establish that: (1) the OII landfill site is a "facility" under CERCLA's definition of that term; (2) a "release" or "threatened release" of a "hazardous substance" has occurred from the OII site; (3) plaintiffs have incurred costs in responding to the release that are necessary and consistent with the National Contingency Plan; and (4) defendant City of Alhambra is within one of four classes of liable "persons" under CERCLA section 107(a). 3550 Stevens Creek Assoc. v. Barclay Bank, 915 F.2d 1355, 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1358, [21 ELR 20011] (9th Cir. 1990). In their Responses to Plaintiffs' First Set of Requests for Admission to Defendants, Defendant Cities conceded the first element listed above, namely, that the OII landfill is a "facility" under CERCLA. The eight issues plaintiffs ask the Court to deem without substantial controversy relate to the remaining three elements. 3. Whether a release of a hazardous substance occurred at the OII Landfill The second element of liability under section 107 (a) is that a "release" or a "threatened release" of a hazardous substance occurred at the OII Site. Plaintiffs' Issue Number 1 asks the Court to find that that such a release occurred. CERCLA defines the term "release" to encompass any emitting or discharging into the environment, with certain limited exclusions not relevant here.3 CERCLA section 101(22), 42 U.S.C. § 9601(22). The "environment" is defined to mean "(A) [navigable waters], and (b) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States. . . ." CERCLA section 101(8), 42 U.S.C. § 9601(8). A "release" of hazardous substances has occurred at a facility if hazardous substances are found in soil, water, or air samples at a facility. Washington v. Time Oil Co., 687 F. Supp. 529, 531 [18 ELR 21376] (W.D. Wash. 1988); United States v. Northernaire Plating Co., 670 F. Supp. 742, 746-47 [18 ELR 20712] (W.D. Mich. 1987). The term "hazardous substance" is also defined very broadly, and includes any substance designated as hazardous by the EPA under CERCLA section 102, or other legislative acts including the Solid Waste Disposal Act, the Clean Air Act, the Clean Water Act of 1977, and the Toxic Substances Control Act.4 Plaintiffs assert that benzene, toluene, xylene, 1,2-dichlorobenzene, 1,4-dioxane, naphthalene, chromium, cobalt, lead, mercury, nickel, and zinc are hazardous substances. In support of this assertion, plaintiffs submit the declaration of Edward B. Overton, the Director of the Institute for Environmental Studies at Louisiana State University and the chief chemist of the Hazardous Materials Response Branch Chemical Hazard Assessment Team for the National Oceanographic and Atmospheric Administration. In his declaration, Overton states that each of the substances listed above are hazardous substances. Defendant Cities do not dispute that benzene, toluene, xylene, 1,2-dichlorobenzene, 1,4-dioxane, naphthalene, chromium, lead, mercury, nickel, and zinc are hazardous substances. However, defendants submit the declaration of their own expert, James Byard, an environmental toxicologist, who states that cobalt is not a hazardous substance, as defined by section 101 (14). The Court finds that benzene, toluene, xylene, 1,2-dichlorobenzene, 1,4-dioxane, naphthalene, chromium, lead, mercury, nickel, and zinc are hazardous substances and leaves the characterization of cobalt for the trier of fact. Plaintiffs also declare that each of the hazardous substances listed above are present in the water at the OII Site. In support of this statement, plaintiffs submit the Draft Leachate Management Feasibility [22 ELR 20775] Study, OII Landfill Site Report, attached as Exhibit 1 to the declaration of David Giannotti, one of plaintiffs' attorneys. Appendix C, Addendum 1 to this Draft Report is a report dated September 16, 1986, by the EPA's National Enforcement Investigations Center (the "EPA Report") on samples of water collected in July, 1986 from the OII Site. Tables 2 and 5 of this Report list various substances detected at the Site. Plaintiffs also offer Overton's declaration, in which he states that he reviewed the EPA Report attached to Giannotti's declaration. Overton confirms that the EPA Report states that numerous hazardous substances were detected in the water at the OII Site, including benzene, toluene, xylene, 1,2-dichlorobenzene, 1,4-dioxane, naphthalene, chromium, lead, mercury, nickel, and zinc. In addition, plaintiffs assert that other hazardous substances, including vinyl chloride, have been detected in ambient air emissions at the OII landfill. Plaintiffs thus conclude that a release of hazardous substances has occurred at the OII Site. Defendant Cities dispute that there has been a release of hazardous substances into the environment at the OII Site. However, defendants neither brief the issue nor attempt to controvert the facts submitted by plaintiffs, with the exception of the classification of cobalt as a hazardous substance. Instead, defendants' entire response to this issue consists of evidentiary objections to plaintiffs' evidence. Specifically, defendants assert that the Partial Consent Decree, including the EPA's Records of Decision, attached as Exhibit 3 to the First Amended Complaint, and the Draft Leachate Feasibility Study, attached to Giannotti's declaration, are not authenticated and are hearsay. Defendants also object that the Leachate Feasibility Study is a draft and not the final report. Defendants further complain that the Overton declaration is inadmissible due to lack of foundation, hearsay, and lack of authentication. In their reply brief, plaintiffs note that defendants did not dispute that the documents submitted are in fact authentic, but merely challenge plaintiffs' authentication of them. Plaintiffs contend that this is a matter of splitting hairs, because for purposes of bare admissibility, they need only submit "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). Plaintiffs authenticated the challenged documents through the declaration of Giannotti, the attorney who represented the OII Steering Committee in negotiating, executing, and implementing the Partial Consent Decree and resulting remedies at the OII Site. Plaintiffs further claim that the relevant reports from these documents, which purport on their faces to be printed by authority of the government, are self-authenticating. Fed. R. Evid. 902(5). With their reply brief, plaintiffs also submitted a certified copy of the final version of the Leachate Feasibility Study. Plaintiffs state that they did not receive this final copy of the report until after having filed their moving brief. Plaintiffs note that the final report does not differ from the draft with respect to the detection of hazardous substances.5 At the hearing on plaintiffs' motion for summary adjudication of issues, defendants' counsel, Mitchell Abbott, expressly stated that defendants did not contest Issue Number 1, though they had filed written opposition. Therefore, the Court finds that plaintiffs are entitled to an order that Issue Number 1, namely, that a release of a hazardous substance occurred at the OII landfill, is without substantial controversy. 4. Whether plaintiffs have incurred necessary response costs consistent with the national contingency plan in connection with the OII Site The third element of this private cost recovery action is that plaintiffs have incurred "necessary costs of response . . . consistent with the national contingency plan." CERCLA section 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B). Plaintiffs' Issue Number 2 asks the Court to find that plaintiffs have incurred such costs. "Costs of response" are costs incurred in performing a removal or remedial action at a facility. CERCLA sections 101(23), (24) and (25), 42 U.S.C. §§ 101(23), (24) and (25). The EPA has thus far selected two partial remedies for the OII Site, which are embodied in the Record of Decision for the Site Control and Monitoring Operable Unit, dated July 31, 1987, and the Record of Decision for the Leachate Management Operable Unit, dated November 16, 1987, attached as Appendices A and B to Exhibit 3 to the First Amended Complaint. The Partial Consent Decree requires plaintiffs to implement the remedies selected by the EPA in its two records of decision. Plaintiffs submit the declaration of Giannotti who states that since entry of the Decree, plaintiffs have reimbursed the EPA and the State of California for past response costs and have contributed substantial work and money in implementing the remedies selected by the EPA. Plaintiffs contend, therefore, that they have incurred response costs in connection with the OII Site. Plaintiffs further argue that the costs they have incurred are necessary response costs consistent with the national contingency plan. They cite NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 [16 ELR 20749] (9th Cir. 1986) for the proposition that any response costs required by governmental agencies are deemed "necessary" within the meaning of CERCLA section 107(a)(4)(B). However, the court in NL Industries stated only that a plaintiff's allegation that he was required by state and local agencies to incur response costs was "sufficient" to survive a motion to dismiss. The Court did not state that such allegations were sufficient to support a motion for summary judgment. Plaintiffs also cite EPA regulations which establish that [f]or the purpose of cost recovery under section 107(a)(4)(B) of CERCLA, . . . [a]ny response action carried out in compliance with the terms of . . . a consent decree entered into pursuant to section 122 of CERCLA, will be considered "consistent with the NCP." 40 C.F.R. § 300.700(c)(3)(ii). Giannotti declares that the response costs incurred by plaintiffs were carried out in compliance with the Partial Consent Decree. Plaintiffs argue, therefore, that the Court should deem these costs necessary and consistent with the National Contingency Plan. Although defendant Cities dispute that plaintiffs have incurred necessary response costs or that any such response costs have been consistent with the national contingency plan, they fail to brief the issue or to controvert plaintiffs' evidence. Instead, they contend that plaintiffs must also prove that the response costs they incurred were caused by Alhambra. Defendant Cities cite Louisiana-Pacific Corp. v. Asarco, Inc., 735 F. Supp. 358 [20 ELR 21452] (W.D. Wash. 1990), in support of their argument that for liability to attach, plaintiffs must prove that Alhambra caused the incurrence of costs in response to the release of hazardous substances at the OII Site. In Louisiana-Pacific, the EPA declared the B & L Landfill in Washington to be a contaminated site and identified Louisiana-Pacific and the Port of Tacoma as potentially responsible parties. Louisiana-Pacific filed a contribution action against Asarco, Inc., and Asarco then filed a third-party complaint for contribution against USG Interiors, Inc. ("USGI"). USGI moved for summary judgment, arguing that the waste it deposited at the dump contained "extremely small concentrations of hazardous material," that this waste was insignificant compared to the vast quantity of material dumped by Louisiana-Pacific and Asarco, and that USGI's waste did not cause the incurrence of any response costs. In opposition to USGI's motion, Asarco argued that CERCLA does not require it to prove proximate cause to recover response costs. The district court stated, There is a distinction between "causing a release" and "causing response costs." In other words, liability does not attach because the defendant caused "a release," but because it caused "response costs." While a defendant may often cause both, it is the causing of response costs that subjects a party to liability under CERCLA. Louisiana-Pacific, 735 F. Supp. at 362. The court in Lousiana-Pacific then found that there was conflicting evidence with respect to whether the waste deposited by USGI had caused the incurrence of response costs, and, therefore, it denied USGI's motion for summary judgment. Defendant Cities also rely on Amoco Oil Co. v. Borden, Inc., [22 ELR 20776] 889 F.2d 664 [20 ELR 20281] (5th Cir. 1989). In Amoco Oil, the Fifth Circuit rejected the argument that CERCLA liability attaches automatically upon the release of an infinitesimal amount of a hazardous substance, stating Amoco and the EPA argue that CERCLA liability attaches upon the release of any quantity of a hazardous substance and that the extent of a release should be considered only at the remedial phase. However, we must reject this approach because adherence to that view would permit CERCLA's reach to exceed its statutory purposes by holding parties liable who have not posed any threat to the public or the environment. Id. at 670 (emphasis in original). The court then set forth the standard defendant Cities request the Court to apply to this case: In the absence of any specific direction from Congress, we believe that the question of whether a release has caused the incurrence of response costs should rest upon a factual inquiry into the circumstances of a case and the relevant factual inquiry should focus on whether the particular hazard justified any response actions. Defendant Cities thus conclude that the Court should deny plaintiffs motion for summary adjudication of Issue Number two, "not because there is a factual dispute, but because plaintiffs have utterly failed to come forward with any evidence showing that municipal waste from the City of Alhambra caused plaintiffs to incur response costs." Defendants also offer the declaration of Stephen R. Maguin, the Department Head of the Solid Waste Management Department of the County Sanitation Districts of Los Angeles County, who states that absent "mixing" or otherwise combining municipal solid waste ("MSW") with liquids, MSW, alone, has not in the past and should not in the future, generate leachate or otherwise contribute to a release of hazardous substances into the environment. In reply, plaintiffs correctly argue that defendant Cities' assertion that plaintiffs must also establish that Alhambra caused the response costs that plaintiffs incurred has no merit. First, the relevant portion of CERCLA section 107 provides that anyone who arranges for the disposal of hazardous substances at a facility from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for . . . necessary costs of response incurred by any other person consistent with the national contingency plan. CERCLA sections 107(a), 42 U.S.C. § 9607(a). Thus, the plain language of the statute requires proof that plaintiffs incurred costs caused by either the release or the threatened release, rather than proof that plaintiffs' response costs were caused by defendants. Moreover, although the Amoco Oil court required causation of response costs, it did so only on the part of the plaintiff seeking contribution. That is, the court required plaintiff to prove that it had incurred costs responding to a release or a threatened release of a hazardous substance. The court expressly rejected the argument that plaintiff was required to demonstrate that defendant had caused the release or threatened release that had caused plaintiff to incur response costs. The Amoco Oil court further stated, in cases involving multiple sources of contamination, a plaintiff need not prove a specific causal link between costs incurred and an individual generator's waste. . . Moreover, parties falling within the statutory definitions of responsible persons are strictly liable for "a release or threat of a release, without regard to causation." Amoco Oil, 889 F.2d at 670, n.8 (citations omitted), quoting State of New York v. Shore Realty Corp., 759 F.2d 1032, 1044 [15 ELR 20358] (2d Cir. 1985) (applied to current owner of a facility). See also, Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1153-54 [20 ELR 20334] (1st Cir. 1989) (holding that the only causation that is requiredis that the defendant's release or threatened release, caused the plaintiff to incur response costs). The law in the Ninth Circuit is in accord. The "response cost" element of a prima facie case is satisfied by proof that the "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan." 3550 Stevens Creek Assoc., 915 F.2d at 1358; Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1153 [19 ELR 20374] (9th Cir. 1989) (holding that to establish a prima facie case, "a plaintiff need not allege the particular manner in which a release has occurred in order to make out a prima facie claim under section 107(a) of CERCLA"). At the hearing, defendants' counsel, Mitchell Abbott, declared that though defendants had filed written opposition, they do not now contest Issue Number 2, namely, that plaintiffs have incurred necessary response costs consistent with the national contingency plan in connection with the OII Site. The Court finds that plaintiffs are entitled to an order that Issue Number 2 is without substantial controversy. 5. Whether Alhambra is within the class of persons liable as an arranger The fourth and final element of a private party cost recovery action is that a defendant falls within one of four classes of "liable" persons under CERCLA section 107(a). Plaintiffs seek to establish that Alhambra is within the class of persons liable as an "arranger" for disposal. CERCLA section 107(a)(3) defines who is liable as an arranger: any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances. 42 U.S.C. § 9607(a)(3). The following five issues which plaintiffs request the Court to find are without substantial controversy relate to whether Alhambra should be deemed to be within the class of persons liable as an arranger under CERCLA section 107(a)(3). a. Whether By Contracting with Athens for the Collection and Disposal of Residential Waste, Alhambra "Arranged for Disposal" of that Waste, Within the Meaning of CERCLA Section 107(a)(3) The first component of arranger liability is that someone "by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment." Plaintiffs' Issue Number 3 asks the Court to find that by contracting with Athens for the disposal of residential waste, Alhambra arranged for the disposal of that waste within the meaning of section 107(a)(3). CERCLA expressly provides that one way to "arrange" for disposal is "by contract [or] agreement." CERCLA section 107(a)(3), 42 U.S.C. § 9607(a)(3). It is well settled that one who contracts for disposal has "arranged" for disposal even if the contract does not mention the disposal site. United States v. Parsons, 723 F. Supp. 757, 762 [19 ELR 21420] (N.D. Ga. 1989) ("The fact that Morrison did not personally select the site where the drums were to be dumped does not mean that he did not arrange for their transportation to a facility"); United States v. Ward, 618 F. Supp. 884, 895 [16 ELR 20127] (E.D.N.C. 1985) ("The assertion that CERCLA requires a generator who arranges for disposal to know where the disposal is to take place before liability is established is unfounded. . . To give the statute the interpretation argued by . . . defendants would allow generators of hazardous wastes to escape liability under CERCLA by closing their eyes to the method in which their hazardous wastes were disposed of"). Plaintiffs have established that in an effort to carry out its legal and statutory duty, Alhambra has contracted, since at least 1960, with Athens to have its residential refuse collected from within the city and transported for disposal. Alhambra fulfilled this responsibility by executing a series of waste disposal contracts between Athens and itself.6 Under these contracts, Athens agreed to collect and to dispose of Alhambra's residential waste for a specified fee.7 After collecting the residential refuse, Athens transported it to landfills outside the [22 ELR 20777] City. For many years before 1984, the OII Site was the primary landfill used by Athens to dispose of the refuse from Alhambra's over 50,000 residents. Plaintiffs contend that these contracts constituted arrangements within the meaning of section 107(a)(3). Plaintiffs thus conclude that by contracting with Athens, Alhambra "arranged for the disposal" of residential waste during the period 1960 to 1984. Defendants do not dispute the facts presented by plaintiffs. However, they argue that a city which fulfills its statutory duty of arranging for the disposal of residential trash does not incur strict liability for the cleanup of any landfill where the hauler may eventually dump that rubbish. Defendants also contend that plaintiffs' motion, if granted, would create an impossible conflict between the liability provisions of CERCLA and the express statutory mandate that requires cities in California to assure the pick-up and disposal of residential trash. Defendants argue that this conflict would precipitate the termination of residential garbage collection services, a result neither intended nor anticipated by Congress. Defendants argue that this conflict would precipitate the termination of residential garbage collection services, a result neither intended nor anticipated by Congress. Defendants conclude, therefore, that the Court should find that Alhambra did not incur arranger liability by virtue of its having entered into a contract with Athens for the disposal of residential refuse. Defendants cite United States v. Kramer, 757 F. Supp. 397, [21 ELR 20879] (D.N.J. 1991), as support for their argument that municipalities disposing of residential waste were clearly not the intended target of CERCLA. Defendants rely on the Kramer Court's statement: We note, too, that pursuit of private entities responsible for generating or transporting hazardous waste to Superfund sites is rationally related to CERCLA's aim of imposing liability for the cost of cleaning up such sites upon those who have profited from trafficking in and improperly disposing of hazardous substances. Municipalities cannot be said to have profited from the generation and disposal of hazardous substances. Id. at 434. Defendant Cities thus argue that Kramer suggests that the Court should not find that Alhambra incurred arranger liability by contracting with Athens for the disposal of residential waste. In Kramer, the government brought actions against various defendants, alleging that they were liable for cleanup costs under CERCLA. Defendants asserted a number of affirmative defenses to the government's claims. The paragraph quoted by defendants appears in the context of defendants' equal protection challenge to their prosecution. The court rejected defendants' argument that the EPA's alleged policy of failing to prosecute municipalities in CERCLA actions violated the equal protection clause on the grounds that the EPA had a rational basis for not pursuing municipalities. However, the court neither held nor suggested, as defendants imply, that municipalities should be exempt from liability under CERCLA. The paragraph immediately following the one quoted by defendants reads: But we must also recognize that CERCLA's statutory scheme explicitly contemplates that PRPs such as municipalities who have not been named defendants in 107 actions, can be brought into the action by defendants seeking contribution, as has happened in this case. The sole effect of the government's policy then, is to alter the posture in which municipalities become defendants in CERCLA actions. We cannot assume that the government intends to exclude and so insulate municipalities from liability for their contributions of hazardous substances to this or any site, because the statute itself permits other PRPs to bring in municipalities as defendants. In their reply brief, plaintiffs submit a statement made by Kevin Murphy, Alhambra's City Manager, as support for their argument that Alhambra incurred arranger liability by contracting with Athens for the disposal of its residential waste. Murphy stated, "In the case of Alhambra, . . . if the city issues a business licence to a trash hauler or franchises its garbage collection, the city becomes liable." Murphy made this statement to a reporter, who was writing an article on the clean-up efforts at the OII Site. However, the fact that Murphy believes that Alhambra is liable under the law is irrelevant. The phrase "arranged for disposal" is not defined in CERCLA. Moreover, "[w]hether an 'arrangement for' disposal exists depends on the facts of each case." Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 [20 ELR 20523] (11th Cir. 1990). Three principles, however, have emerged from the case law to guide the determination of whether a particular set of facts constitutes an "arrangement for" disposal. First, courts have not hesitated to look beyond a defendant's characterizations to determine whether a transaction in fact involved an arrangement for the disposal of a hazardous substance. See e.g., United States v. New Castle County, 727 F. Supp. 854, 873 [20 ELR 20499] (D. Del. 1989). Second, if persons have a legal responsibility for the disposal of hazardous substances, they cannot evade liability if they do nothing and simply "close their eyes" to the method of disposal of their hazardous substances. See e.g., United States v. Ward, 618 F. Supp. at 895. Third, courts have stated that "a liberal judicial interpretation of the term is required in order (to) achieve CERCLA's 'overwhelmingly remedial' statutory scheme." Florida Power & Light, 893 F.2d at 1317. Applying these principles to the instant case, the Court finds that Alhambra's having contracted with Athens for the transportation and disposal of its residential waste constituted an arrangement for disposal within the ambit of § 107(a)(3) of CERCLA. The Court thus holds that plaintiffs are entitled to an order that Issue Number 3 is without substantial controversy. b. Whether Residential Waste, Collected and Disposed of Through Alhambra's Arrangements, was Deposited at the OII Site and Contained One or More "Hazardous Substances" Plaintiffs' Issue Number 4 asks the Court for summary adjudication of their claim that residential waste of which Alhambra arranged disposal was deposited at the OII Site and contained one or more hazardous substances, within the definition of CERCLA section 101(14), 42 U.S.C. § 9601(14). Defendants concede that, pursuant to contracts with Alhambra, Athens collected residential refuse from within the city for disposal. Plaintiffs have established that between 1962 and 1984, Athens deposited some of this waste at the OII landfill.8 Plaintiffs contend that Athens dumped "hazardous substances" at the OII Site because "household products in the waste of Alhambra residents necessarily contained a wide variety of hazardous substances." In support of this statement, they submit the declaration of one of their experts, Robert E. Van Heuit, the executive manager of Emcon Associates, an environmental consulting firm. Van Heuit declares: 6. Household waste disposed of at landfills in Los Angeles County during the 1960's and 1970's included numerous products containing Hazardous Substances. For example, household waste streams commonly included the following products (sometimes as residue inside the product container or container lid): paint, disinfectant, oven cleaner, glass cleaner, ammonia cleaner, caulk, mildew stain remover, pesticides, and and roach killer, all-purpose cleaners, all-purpose adhesive, plastic adhesive, cyanoacrylate glue, hand cleaner, tile cleaner, furniture polish, household batteries, antifreeze, used motor oil, engine degreaser, upholstery and carpet cleaners, toilet bowl cleaner, drain opener, silver polish, finger-nail polish remover. 7. Each of the items in the above list contains one or more Hazardous Substances. The Hazardous Substances in these items include the following: acetone, trichlorethylene, perchloroethylene, methylethylketone, ethylene glycol, benzene, xylene, toluene, mercury, chromium, lead, nickel, cadmium. 8. I have been informed that between 90% and 100% of the household waste generated by residents of the City of Alhambra during the period 1962 to 1975 was disposed of at the OII Site, and that the city of Alhambra had a total population in excess of 50,000 throughout this entire period. Given these facts, it is my opinion that the waste deposited at the OII site from Alhambra contained Hazardous Substances as a matter of absolute certainty. Since hazardous substances were so prevalent in ordinary household products during [22 ELR 20778] this time period, it is not possible that more than 10 years worth of refuse from tens of thousands of people would fail to contain at least some hazardous substances. Plaintiffs' Issue Number 4 is premised on two propositions: (1) hazardous substances are pervasive in residential waste; and (2) a large volume of Alhambra's residential waste was deposited at the OII landfill. Essentially, plaintiffs are asking the Court to hold that it necessarily follows that hazardous substances contained in Alhambra's residential waste were deposited at the OII landfill. Defendant Cities offer the declarations of their experts, Byard and Sigurd Rosenlund, a consumer products chemist, to refute Van Heuit's statements that various household products always contained hazardous substances. Van Heuit's declaration does not present hard evidence that Alhambra's residential waste that contained specific hazardous substances was deposited at the OII landfill. Rather, plaintiffs' evidence merely suggests a series of assumptions that, if believed, would lead to the conclusion that hazardous substances were present in Alhambra's residential refuse that was disposed of at the OII Site. Plaintiffs have not established that factual issue so as to warrant summary adjudication. Plaintiffs also claim that batteries, antifreeze, paint, caulking, and used motor oil filters were present in the Alhambra residential waste that was deposited at the OII Site. In support of this statement, plaintiffs offer the declaration of John E. Laird, who worked as a trash collector for Athens between 1965 and 1976. Laird states that while working on residential house routes in Alhambra, he picked up trash containing oil-based house paint and flashlight batteries. Laird also declares that he picked up both car and motorcycle batteries. He salvaged the car, but not the motorcycle batteries. Plaintiffs also submit Laird's deposition, in which he confirms that antifreeze, caulking, and used motor oil filters were present in Alhambra's residential waste, Laird further states that he dumped all the trash that he picked up on residential routes in Alhambra at the OII Site. Plaintiffs then submit the declaration of Overton as support for their assertion that each of these household items collected by Laird contained hazardous substances, as indicated below:
Defendant Cities dispute plaintiffs' evidence on several grounds. First, they point out that between 1960 and 1975, the period of time about which Overton made statements as to the hazardous nature of residential waste, not all of the Athens trucks took Alhambra residential waste to the OII Site. Defendants submit an excerpt from the deposition of Ron Arakelian, who states that some of Alhambra's residential waste was taken to other landfills in the area, including BKK, Owl Rock, Scholl Canyon, and Puente Hills. Defendant Cities also prove, through the deposition of Ron Arakelian, Jr. and the declaration of Lupe Diaz, that Athens drivers were not permitted to pick up car batteries, paint containers,10 and used motor oil. The Cities thus argue that even if those materials were disposed of in the trash, Athens trash collectors likely discovered them and left them on the curb. Defendant Cities also suggest that items containing hazardous materials may have been plucked by scavengers out of the trash before it was covered up with dirt.11 Plaintiffs submit the testimony of Laird and Uribe, two of Athens' former trash collectors, to the effect that hazardous substances generated by Alhambra residents were disposed of at the OII site from 1960 to 1975, the period during which Overton and Van Heuit identify household products alleged to contain hazardous substances.12 However, Laird and Uribe did not begin working on a residential route in Alhambra until after the period of time covered by the Overton and Van Heuit declarations. Laird did not begin working on a residential route until 1975 or 1976; Uribe until 1978. Plaintiffs contend that because Overton's declaration applies without regard to time period, the time frame is not problematic. Their argument, however, is unconvincing because the majority of Overton's statements are limited by time. Defendant Cities also challenges plaintiffs' experts' designations of a variety of substances as hazardous. Although plaintiffs attempt to refute these challenges in their reply brief, they often refer only to the generic term "hazardous substances" and not to particular hazardous substances by name. Also, defendants' experts and plaintiffs' experts dispute whether all caulking compounds are composed of hazardous substances. In their reply brief, plaintiffs assert that defendant Cities failed to controvert their evidence that "C" and "D" cell batteries, which are composed of hazardous substances, were contained in Alhambra's residential waste that was deposited at the OII landfill. As support for this statement, plaintiffs rely on Laird's declaration in which he stated that while he was working for Athens, he collected flashlight batteries. Laird specifically recalled seeing "C" and "D" cell batteries, some of which were the Eveready brand. Laird also declared that all the residential refuse he collected from the City of Alhambra was deposited at the OII Site. Defendant Cities point out that Laird's testimony about the collection of batteries was quite different at his deposition. Laird's deposition transcript reads as follows: Q. Did you ever notice any flashlight batteries or small household batteries in the trash in Alhambra? A. That was very seldom that you'd find that. Q. Do you recall finding them in Alhambra? A. No, not really, because once in a while you would run across one, but it was very seldom that you would find that. Laird deposition at 64-65. Laird's deposition testimony thus contradicts his declaration. In their reply, plaintiffs assert that Laird's deposition testimony is not contradictory, but only vague. Plaintiffs further contend that defendants' argument goes only to Laird's credibility, and, therefore, is insufficient to defeat their motion for summary adjudication. The Court will disregard Laird's statements about the batteries. Plaintiffs may not prevail on a motion for summary adjudication of an issue by relying solely on a declaration of a single witness who four months previously had testified to the contrary.13 Material issues of fact exist as to whether residential waste from the City of Alhambra that was deposited at the OII landfill contained hazardous substances. In support of the instant motion, plaintiffs rely on the sweeping statements of their experts who offer logical analysis, but no hard evidence. Moreover, there is a dispute as to whether all of Alhambra's residential waste was taken to the OII Site or to some other landfill. It is possible that waste products that contained hazardous substances were extracted by a driver and left on the curb. It is also possible that such items were plucked from the trash at the OII landfill by the scavenger crews. Finally, it is also possible that Alhambra's residential waste did not contain any hazardous substances at all. [22 ELR 20779] Therefore, while the Court may question the nature of lengthy factual presentation on this issue, the Court holds that whether Alhambra's residential waste contained hazardous substances and was disposed of at the OII Site is a question of fact that must be decided at trial. Accordingly, the Court denies plaintiffs' motion for summary adjudication of Issue Number 4. c. Whether the OII Site Contains Hazardous Substances as Were Present in the Residential Waste from Alhambra that was Deposited at the Site Plaintiffs' Issue Number 5 refers to another aspect of arranger liability, namely, proof that the OII Site contains "such hazardous substances" as Alhambra arranged for disposal. CERCLA section 107(a)(3), 42 U.S.C. § 9607(a)(3). This element does not require proof that the site still contains the very substances for which defendants arranged disposal. All plaintiffs are required to show is that hazardous substances of the same generic type for which defendants once arranged disposal are still present at the site. See e.g., United States v. Wade, 577 F. Supp. 1326, 1333 [14 ELR 20096] (E.D. Pa. 1983). As stated in the context of Issue Number 1, plaintiffs established that the following hazardous substances are still present at the OII Site: benzene, toluene, xylene, 1,2-dichlorobenzene, 1,4-dioxane, naphthalene, chromium, lead, mercury, nickel, and zinc. Plaintiffs submit Overton's declaration as support for the proposition that these hazardous substances were present in the residential waste deposited at the OII Site by Athens under the contract with Alhambra. Plaintiffs thus conclude that the OII Site contains a hazardous substance of the type for which Alhambra arranged disposal. In their reply brief, plaintiffs correctly point out that defendants failed to present any evidence or argument to controvert Issue Number 5, that the OII Site contains hazardous substances of the type found in Alhambra's residential waste. Again, defendants stood on their evidentiary objections to the reports demonstrating that specified hazardous substances have been detected at the OII Site. As stated previously, these objections are meritless.14 Plaintiffs thus argue that they are entitled to an order that Issue Number 5 is without substantial controversy. However, the Court declines to accept plaintiffs' expert's opinion as to what must have been deposited at the Site and what types of hazardous substances such refuse must have contained. Overton's statements are little more than informed guesses, they are not based on personal knowledge. At the hearing, counsel for defendant Cities stated that his defendants do not contest Issue Number 5. However, the County of Los Angeles, does oppose the summary adjudication. Plaintiffs' motion for summary adjudication of Issue Number 5 is denied. As stated previously, the Court denied plaintiffs' request for summary adjudication of whether Alhambra arranged the disposal of certain residential refuse that contained hazardous substances at the OII landfill. Therefore, the Court cannot find that the Site contains the same type of hazardous substances as were present in the residential waste deposited there — precisely because the Court did not determine what residential waste was dumped at the Site. d. Whether Plaintiffs Must Prove that Alhambra "Owned or Possessed" the Hazardous Substances of which it Arranged Disposal in Order to Incur Arranger Liability under Section 107(a)(3) of CERCLA Plaintiffs' Issue Number 6 requests the Court for an order that arranger liability under section 107(a)(3) may attach regardless of whether Alhambra owned or possessed the hazardous substances of which it arranged disposal. Plaintiffs ask the Court to declare that they are not required to prove that Alhambra arranged the disposal of wastes that it owned or possessed. Conversely, defendants argue that ownership or possession of the hazardous substances at issue is an element of liability under CERCLA section 107(a)(3). At the hearing on the instant motion, defendant Cities counsel, asserted that in Issue Number 6, plaintiffs were requesting an early determination of law. The Court stated that it wanted both sides to come to an agreement with respect to what exactly was being requested by the Court regarding section 107(a)(3). During a conference call conducted after the hearing, plaintiffs' counsel stated that the parties could not agree to have the Court rule on the legal issue of the ownership or possession requirement as it is currently postured. Plaintiffs then requested a ruling on the issues presented in their motion. Section 107(a)(3) imposes liability on: any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by any such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances . . . 42 U.S.C. § 9607(a)(3) (emphasis added). Plaintiffs suggest that section 107(a)(3) provides that the hazardous substances of which Alhambra arranged disposal may be owned by Alhambra or "by any other party or entity." Thus, plaintiffs contend that Alhambra's ownership or possession of the hazardous substances is not a component of arranger liability. Defendant Cities argue that the "owned or possessed" clause requires proof that Alhambra owned or possessed the hazardous substances. Defendants point out that throughout section 107, the word "person" is used to describe the defendant being found liable. They further claim that the words "by any other party or entity" describe the party responsible for disposal or treatment of the hazardous substances at an off-premises site. Defendants thus argue that the most natural reading of section 107(a)(3) is that the phrase "by any other party or entity" modifies the main clause, and is intended to read, "any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, . . . by any other party or entity. . . ." Defendants further assert that the words, "of hazardous substances owned or possessed by such person," are set off by commas and are intended to stand as a separate clause. The language of the statute is not plain and the Court, therefore, will examine the legislative history of and the cases interpreting CERCLA section 107(a)(3). Defendant Cities claim that the legislative history lends some support to their argument. As originally proposed in the Senate Bill, the language which became section 107(a)(3) imposed liability on: any person who by contract, agreement, or otherwise arranged for disposal, treatment, or transport for disposal or treatment by any other party or entity of hazardous substances owned or possessed by such person, at facilities or sites owned or operated by such other party or entity and containing such hazardous substances. . . S. 1480, as reported by the Senate Committee on Environment and Public Works (July 11, 1980) (reprinted in 1 A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), Public Law 96-510, etc. at 486) (emphasis added). This was the language contained in S. 1480 as of November 20, 1980, when the matter was brought to the floor of the Senate. However, because of political pressures, the entire bill was completely re-written in one day. The comprehensive amendment was then brought to the floor of the Senate and passed, after less than a full day of debate. In this compromise amendment, the language quoted above was changed to read as follows: any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by any such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances . . . Amendment No. 2631 to S. 1480 (November 21, 1980) (reprinted in 1 A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), Public Law 96-510, etc. at 602) (emphasis added). Defendants correctly point out that this is the language which was later codified as section 107(a)(3). Defendants argue that the comments made by the authors of the amendment indicate that the changes in section 107(a)(3) were not [22 ELR 20780] intended to be substantive. Defendants declare, therefore, that changes wrought in the language of the draft bill did not erase the requirement of ownership or possession. However, the statements cited by defendants do not mention specifically the owned or possessed language. Moreover, the legislative history of CERCLA is vague, and defendants themselves admit that "the legislation was signed into law with many technical imperfections." The Court, therefore, finds that the legislative history is not dispositive of the question of whether ownership or possession of the hazardous substances is a requirement of arranger liability. Plaintiffs and defendants were each able to cite cases in support of their antithetical contentions. Plaintiffs rely on United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823 [14 ELR 20212] (W.D.Mo. 1984), aff'd in part and rev'd in part, 810 F.2d 726, 743-44 (8th Cir. 1986) ("NEPACCO I"), cert. denied, 108 S. Ct. 146 (1987), [17 ELR 20603] as support for their argument that section 107(a)(3) does not require proof of ownership or possession. In NEPACCO I, the court interpreted § 107(a)(3) to create no ownership or possession requirement: The provision clearly states that the person arranging for the disposal is not required to actually own or possess the hazardous waste or the facility from which it is moved for disposition. Since defendant Lee arranged for the disposal and transport of the hazardous waste, he is liable under section 107(a)(3), regardless of whether he actually owned or possessed the hazardous waste substance. . . NEPACCO I, 579 F. Supp. at 847. See also, United States v. Mottolo, 629 F. Supp. 56, 60 (D.N.H. 1984) (section 107(a)(3) "clearly states that the person who arranges for disposal or for transport for disposal of hazardous substances need not own or possess the waste"). In opposition, defendant Cities claim that ownership or possession is a component of arranger liability. However, they concede that the ownership or possession requirement is not literal. That is, defendants claim that ownership or possession may be satisfied by ownership of the waste, Ward, 618 F. Supp. at 894, by actual physical possession of the waste, Parsons, 723 F. Supp. at 762, or by a demonstration of "constructive possession" or "a sufficient nexus" based upon actual control over the handling and disposal of the waste and a commercial relationship between the owner and the arranger. Defendants cite New Castle County, 727 F. Supp. at 873 for the latter proposition. Defendants further point out that in NEPACCO I, the case cited by plaintiffs, the Eighth Circuit Court of Appeals noted in cited by plaintiffs, the Eighth Cirrcuit Court of Appeals noted in affirming that portion of the district court's judgement, that the critical question was "the authority to control the handling and disposal of hazardous substances that is critical under the statutory scheme." NEPACCO I, 810 F.2d at 743. In New Castle County, the court recognized that § 107(a)(3) requires only "that in order to characterize a CERCLA person as an arranger there must be some nexus or relationship between the person under attack and the actual owner of possessor of the hazardous substance." New Castle County, 727 F. Supp. at 874. The court in New Castle County further stated that "(t)he nexus or relationship could be shown, depending on the facts of a particular case, in many ways, all in keeping with the broad remedial objectives of CERCLA." Id. More significantly, the New Castle County court expressly rejected defendants' contention that a commercial relationship is a prerequisite to liability as an arranger. The court observed that in some reported cases a "commercial relationship" provided a sufficient "nexus or relationship." Id. But the court then stated that this required nexus need not have the attribute of being commercial: The nexus or relationship could be shown, depending on the facts of a particular case, in many ways, all in keeping with the broad remedial objectives of CERCLA. In New York v. City of Johnstown, 701 F. Supp. 33 [19 ELR 20578] (N.D.N.Y. 1988), the court ruled that where the state had merely regulated certain aspects of the operation of the disposal sites in question, it was not subject to contribution claims under CERCLA. While noting the language of CERCLA, the court recognized the line of cases in which actual ownership or possession was not required for the imposition of arranger liability, the court held that plaintiff need only show "some nexus between the allegedly responsive person and the owner of the hazardous substances." Id. at 36.15 The Court denies plaintiffs' motion for summary adjudication of Issue Number 6 because ownership or possession of the hazardous waste is required for arranger liability under § 107(a)(3). However, the broad remedial objectives of CERCLA counsel in favor of holding that this requirement may be satisfied by a showing of constructive, rather than actual, ownership or possession. Constructive ownership or possession will be established by a demonstration of the existence of defendants' exercise of control over the waste. e. Whether Alhambra's Exercise of Authority and Control over the Disposal of Residential Refuse Constitutes Ownership or Possession The seventh issue presented by plaintiffs to the Court for summary adjudication is whether Alhambra's control over the disposal of residential waste constitutes ownership or possession within the meaning of CERCLA section 107(a)(3). In NEPACCO I, the Eighth Circuit considered the argument that a company's plant supervisor could not be held individually liable under section 107(a)(3) because the company, rather than the supervisor, owned and possessed the waste in question. The court held that the supervisor was not exempt from liability since "[i]t is the authority to control the handling and disposal of hazardous substances that is critical." NEPACCO I, 810 F.2d at 743. The court then determined that the supervisor had sufficient control for the imposition of arranger liability because he "had immediate supervision over, and was directly responsible for arranging for the transportation and disposal of the" waste. Id. New Castle County involved a suit against a state whose only connection to a site was enforcement of laws regulating disposal sites. The state moved for summary judgment, arguing that its regulation of a hazardous waste site did not render it liable as an arranger. The court granted the motion, holding that "the level of the State's involvement at [the site] d[id] not amount to sufficient activity to give rise to operator or arranger status under CERCLA." New Castle County, 727 F. Supp. at 874-75. New Castle County is distinguishable. As plaintiffs correctly argue, state regulation of disposal facilities may affect decisions on waste disposal, but it does not amount to participation in any part of the disposal decision. Therefore, regulation of a disposal site is not control over waste and does not satisfy the ownershipor possession requirement. Furthermore, the New Castle County court expressly stated: This Court does not hold that a governmental body is automatically foreclosed from CERCLA liability merely because it is acting in a regulatory capacity pursuant to statutory mandate. Id. at 875. The court thus specifically left open the possibility that arranger liability may be found to exist in a fact situation similar to that of the instant case. Plaintiffs assert that defendant Cities, including Alhambra, had absolute control over residential waste. In support of this assertion, they submit the declaration of Pierce O'Donnell, their attorney. Based on his reading of an article written in the 1940s, O'Donnell states that cities had the power to transport residential waste, to salvage portions of it, to sell it, to destroy it, or to convey it to others. O'Donnell states that eventually, these practices were abandoned, and cities began to utilize combined residential waste collection and landfills. Defendants admit that they have the power and the duty, to exercise dominion over residential refuse. Cal. Pub. Res. Code § 40002.16 Plaintiffs argue that Alhambra's relationship to residential refuse illustrates the requisite control. According to plaintiffs, Alhambra: 1. elected to have residential refuse transported out of the city; 2. selected Athens to collect and to transport residential refuse; 3. barred anyone, except the city or its agents, from removing refuse from containers that had been set out at the curbside; 4. instructed Athens on the manner of waste collection; 5. supervised collection of residential waste; and 6. placed title to the refuse in Athens from and after the point of collection. Plaintiffs also claim that Alhambra's arrangement for disposal with its residents and with the private transporter would satisfy a "commercial relationship" test. Alhambra always made a profit on the arrangement by charging its residents a higher rate than it paid Athens for waste collection. Defendants dispute that Alhambra controlled numerous aspects of residential waste disposal and claim that plaintiffs failed to present evidence to prove that Alhambra owned or possessed the residential refuse. However, defendants mistakenly focus on actual title and physical possession of the residential trash. That is, defendants argue that because Alhambra did not have title to the refuse, it cannot be held to have satisfied the ownership or possession requirement of section 107(a)(3). Defendants also allege that none of the tests are satisfied by the City of Alhambra because the contracts between Alhambra and Athens gave the city no control over the place where the residential waste would be dumped. However, one who contracts for disposal has "arranged" for disposal even if the contract does not mention the disposal site. Parsons, 723 F. Supp. at 762 ("The fact that Morrison did not personally select the site where the drums were to be dumped does not mean that he did not arrange for their transportation to a facility"); Ward, 618 F. Supp. at 895 ("The assertion that CERCLA requires a generator who arranges for disposal to know where the disposal is to take place before liability is established is unfounded. . . To give the statute the interpretation argued by . . . defendants would allow generators of hazardous wastes to escape liability under CERCLA by closing their eyes to the method in which their hazardous wastes were disposed of"). Defendants dispute the facts on which plaintiffs rely in support of their motion. Specifically, they present facts which contest plaintiffs' assertions that Alhambra barred anyone from removing waste, instructed Athens on the manner in which it was to collect garbage, supervised the collection of residential waste by Athens, and held title to the waste. The Court denies plaintiffs' motion with respect to Issue Number 7, whether Alhambra's exercise of authority and control over the disposal of residential refuse constitutes ownership or possession. There is a material issue of fact regarding the relationship between Alhambra and Athens and Alhambra's control over Athens' disposal of the waste. f. Whether Alhambra is "Liable," Within the Meaning of CERCLA Sections 107(a) and 113(f)(1), as a Result of Contracting for the Disposal of Residential Waste that Contained Hazardous Substances Deposited at the OII Site Plaintiffs' Issue Number 8 is a compilation of all of the other elements that plaintiffs must prove to establish that Alhambra is within the class of persons liable under CERCLA. The Court denies plaintiffs' request for an order that Issue Number 8 is without substantial controversy because it denied plaintiffs' requests for summary adjudication of Issue Numbers 4, 5, 6, and 7. B. Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint On June 2, 1989, plaintiffs notified the Los Angeles County Board of Supervisors of monetary claims attributable to the acts of the employees of County departments and County Garbage Disposal Districts ("GDDs"). In this notice, plaintiffs expressly named six GDDs, specifically, those of Athens-Woodcrest-Olivita, Belvedere. Firestone, Mesa Heights, Walnut Park, and West Hollywood-Sherman. On June 29, 1989, the Board of Supervisors summarily denied the claim without differentiating between the County and the GDDs. Plaintiffs filed the instant lawsuit on December 21, 1989, naming as a defendant, among others, the County of Los Angeles. Plaintiffs did not name as separate defendants the GDDs or any other County department. On February 25, 1991, the Court granted plaintiffs' motion for leave to amend their complaint to add as defendants the six GDDs listed above. Less than two months later, some of the defendants filed a motion to dismiss plaintiffs' claims for contribution under CERCLA against the GDDs.17 Defendants contend that plaintiffs' claim for contribution18 against the GDDs are barred because they failed to submit a timely claim to the GDDs and failed to file suit against the GDDs within the statute of limitations. Defendants' argument is premised on the contention that state notice of claim provisions govern an action for CERCLA. In opposition, plaintiffs argue that state notice of claim statutes are inapplicable to federal law claims asserted in federal court. 1. Whether state notice of claims provisions govern as action for CERCLA As a general matter, a state may not restrict or otherwise affect a federally-created right asserted in federal court. See e.g., Holmberg v. Armbrecht, 66 S.Ct 582 (1946). Holmberg involved an action on a right arising from the Federal Farm Loan Act. The Court held that because the right did not exist under common law and was created by a federal statute, a state statute of limitations was inapplicable. Id. at 583-4. The Supreme Court recently reaffirmed this principle in Felder v. Casey, 108 S. Ct. 2302 (1988), a case concerning the problem of state-imposed restrictions on a section 1983 claim asserted in state court. The Court held that Wisconsin's notice of claim provisions are preempted by a federal civil rights action brought in state court. Moreover, the entire Court, including the two dissenting Justices, agreed that state notice of claim statutes can have no effect on federal actions brought in federal court. Id. at 2307-08 and 2318 (O'Connor, J., dissenting). Defendants concede that if a right "was created by federal statute, a state statute of limitations may not restrict that right." Plaintiffs argue that this admission is fatal to defendants' motion because their claim for contribution is based on CERCLA section 113(f)(1), which provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a)." 42 U.S.C. § 9613(f)(1). Section 113(f)(1) expressly states that contribution claims are governed by federal law. Section 113(g)(3) establishes a three-year limitations period for contribution actions. 42 U.S.C. §§ 9613 (F)(1) and(g)(3). Defendants respond that although a federally-created right may not be conditioned on compliance with a state notice of claim requirement, the CERCLA contribution claim is not such a federally-created right. They argue that an action for contribution for CERCLA liability merely a codified common law right that the courts enforced before the statute's enactment in 1986. Defendants claim that if a right existed under state common law prior to the enactment of a parallel federal right, then the federal right is governed by the preexisting state statute of limitations. Defendants thus argue that because contribution is a state-created common law right, an action for contribution must comply with state notice of claim procedures. Defendants cite two cases in support of their assertion that in the case of an action for contribution for CERCLA liability, section 113(f)(1) codifies the common law right that the courts enforced before the statute's enactment in 1986. See Mardan Corp. v. C.G.C. Music Ltd., 804 F.2d 1454, 1457 n.3 [17 ELR 20209] (9th Cir. 1986); Colorado v. Asarco, Inc., 608 F. Supp. 1484, 1492 [15 ELR 20523] (D. Colo. 1985). However, both of these cases reveal that section 113(f)(1) codifies federal, not state, common law. Defendants claim that referring to the common law right of contribution as "federal" serves the sole purpose of creating federal jurisdiction but does not alter the conclusion that the right originated under state law and that the state has an interest in enforcing its time limits. However, a right under federal common law is not merely a right under state substantive law that happens to be clothed in federal jurisdiction. Rather, federal common law is substantively federal law.19 Two district courts have considered the applicability of state limitations provisions on CERCLA contributions. Both courts held that such state law limitations have no effect on CERCLA contribution claims. See United States v. Seymour Recycling Corp., 686 F. Supp. 696, 700 [19 ELR 20523] (S.D. Ind. 1988) (holding that defendants' failure to comply with the Indiana Tort Claims Act does not bar their contribution claims because the claims were brought under CERCLA and "CERCLA preempts state tort claims statutes"); Artesian Water Co. v. Government of New Castle County, 605 F. Supp. 1348, 1354 [15 ELR 20577] (D. Del. 1985) (holding that CERCLA preempts the Delaware Tort Claims Act because the Delaware statutes stand "as an obstacle to the accomplishment of the full purposes and objectives which Congress sought to fulfill in enacting CERCLA"). Defendants argue that the Court should not follow Seymour Recycling and Artesian Water because they do not properly analyze the question of whether contribution is a creature of federal law. They also urge the Court to reject Seymour Recycling, stating that the opinion flies "[i]n the face of longstanding federal case law enforcing a state's interest in judicial time limits, except for a right expressly created by federal statute" and that it is not a Ninth Circuit case. However, defendants do not cite any Ninth Circuit opinions holding in their favor.20 Therefore, the Court adopts the Seymour Recycling and Artesian Water decisions and holds that the notice of claims provisions contained in the California Tort Claims Act do not govern plaintiffs' claim for contribution under CERCLA section 113(f)(1). Defendants' motion to dismiss is denied. Though not necessary, the Court will now address the issues of whether plaintiffs complied with the California notice of claim provisions and the statute of limitations. 2. Whether plaintiffs complied with the California notice of claim provisions Defendants request the Court to dismiss plaintiffs' contribution claim on the grounds that plaintiffs failed to submit a timely claim to the GDDs and failed to file suit against them within the statute of limitations. Plaintiffs argue that even if the California notice of claim provisions govern, they complied with its requirements. The California Government Code requires that a claim for death, bodily injury, personal property or growing crops must be made within six months of the accrual of the cause of action and that any other claim must be presented not later than one year after accrual. Cal. Gov't Code § 911.2. Defendants contend that although plaintiffs' claims accrued on May 11, 1989,21 they have never presented a claim to any of the GDDs. They argue, therefore, that plaintiffs' claims are barred because of plaintiffs' failure to comply with section 911.2 of the California Government Code. In their Second Amended Complaint, plaintiffs declare that "[o]n or about June 5, 1989, each [GDD] defendant was served with a claim pursuant to the Tort Claims Act Government Code § 900 et seq. for recovery of response costs, indemnity and contribution." Defendants argue, however, that Exhibit A to the Declaration of Gregory S. Dovel demonstrates that in actuality, plaintiffs made a claim only against the County of Los Angeles, rather than against any of the GDDs. Plaintiffs argue that their claim against the County constituted a claim against the individual GDDs. Plaintiffs contend that because the County Board of Supervisors is the governing body of the GDDs, notice to the Board constituted sufficient notice of the action to the County GDDs. Conversely, defendants argue that because plaintiffs are suing both the GDDs and the County of Los Angeles, they cannot contend that the County and the GDDs are the same entity. Plaintiffs also contend that they served an adequate notice of claim by serving upon the County Board notice that they were seeking cost recovery and contribution based on the actions of the GDDs, mentioning each GDD by name, in arranging for disposal of hazardous substances at the OII Site. A GDD is an organizational district created by the County of Los Angeles to satisfy its duty to arrange for the collection of garbage within a given geographical area. A GDD does not have any employees or property of its own. Rather, its business is conducted entirely by County employees using County property and County materials. The Court finds that plaintiffs notified the GDDs of their claim when they served such notice on the County Board of Supervisors. The California Government Code also provides that a lawsuit against a government entity must be commenced no later than six months after the delivery or deposit in the mail of written notice of rejection of the claim. Cal. Gov't Code § 945.6(a)(1). Defendants note that Dovel's declaration and Exhibit B attached thereto demonstrate that the County of Los Angeles rejected plaintiffs' claim on June 29, 1989. Plaintiffs filed the instant lawsuit on December 21, 1989, naming as a defendant, among others, the County of Los Angeles. Plaintiffs did not name as separate defendants the County GDDs or any other County department. Plaintiffs filed their motion for leave to add the GDDs on January 29, 1991. Defendants argue, therefore, that even if the claim and the rejection embrace the GDDs as well as the County, plaintiffs did not file suit against the GDDs until more than one year after the rejection of their claim. In opposition, plaintiffs contend that their claims against the GDDs are not barred by the statute of limitations because they relate back to the filing of the original complaint. Under Rule 15(c) of the [22 ELR 20783] Federal Rules of Civil Procedure, an amendment adding a defendant relates back to the Complaint if the claim arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . . and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. As the Court determined on February 25, 1991, the requirements of Rule 15(c) were satisfied here. First, plaintiffs' claims against the GDDs arose out of the same transactions and occurrences set forth in the original complaint. Second, the GDDs received sufficient notice of the action within the six-month limitations period so that they will not be prejudiced in maintaing a defense. The Board of Supervisors denied plaintiffs' claim on June 29, 1989. On December 21, 1989, within six months of the denial of the claim, the Board of Supervisors received notice of the institution of the instant lawsuit. As stated previously, because the Board of Supervisors is the governing body of the GDDs, notice to the County Board constituted sufficient notice of the instant action so that the GDDs will not be prejudiced in maintaining a defense. Defendants argue, as they argued in opposition to plaintiffs' motion for leave to amend, that the relation back rule is inapplicable to the instant case because plaintiffs have not articulated a mistake which prevented them from naming the GDDs a separate defendants. However, as plaintiffs explained in their motion for leave to amend, they failed to name the GDDs as defendants in their original complaint because they were uncertain whether the GDDs could be sued as separate entities. Plaintiffs state that six months after they filed their Complaint, defendant County of Los Angeles stated that the GDDs are separate entities and must be named as defendants. Although they were uncertain whether the GDDs, in fact, were separate entities, plaintiffs moved to amend their complaint to add the County GDDs as defendants in order to avoid controversy.22 The Court holds that plaintiffs' belief that the GDDs were not separate entities is sufficient to trigger the application of Rule 15(c). Therefore, plaintiffs' claims against the GDDs relate back to the filing of the original complaint. Consequently, these claims would not be time-barred, even if the California Tort Claims Act were applicable to a CERCLA action. The Court finds that plaintiffs are entitled to an order that Issue Numbers 1, 2, and 3 are without substantial controversy. The Court thus deems as established the following issues: (1) a release of a hazardous substance occurred at the OII landfill, is without substantial controversy; (2) plaintiffs have incurred necessary response costs consistent with the national contingency plan in connection with the OII Site; and (3) Alhambra's having contracted with Athens for the transportation and disposal of its residential waste constituted an arrangement for disposal within the ambit of § 107(a)(3) of CERCLA. The Court denies plaintiffs' motion for summary adjudication of Issue Numbers 4, 5, 6, 7, and 8 because those five issues are not without substantial controversy. The Court also denies defendants' motion to dismiss plaintiffs' claims against the GDDs. The notice of claims provisions contained in the California Government Code do not govern an action for contribution under CERCLA because they are inapplicable to a federal claim asserted in federal court. As an alternative, the Court finds that plaintiffs submitted a timely claim and their action against the GDDs is not barred by the statute of limitations. 1. Plaintiffs note that the Court needs to address this issue only if it concludes that defendants' ownership or possession of waste is an element of arranger liability under CERCLA section 107(a)(3), 42 U.S.C. § 9607(a)(3). Plaintiffs contend that such ownership or possession by defendants is not required by the statute. 2. The County of Los Angeles' brief did not contain any arguments not presented by defendant Cities. 3. The term "release" is defined to mean: any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes [exposures to persons at the workplace, emissions from engine exhaust, nuclear incidents, and the normal application of fertilizer]. CERCLA section 101(22), 42 U.S.C. § 9601(22). 4. CERCLA defines "hazardous substance" to mean: (A) any substance designated pursuant to [the Clean Water Act], (B) any element, compound, mixture, solution, or substance designated pursuant to [section 102 of CERCLA], (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [the RCRA] (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of [the Clean Water Act], (E) any hazardous air pollutant listed under section 112 of the [Clean Air Act], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of [the Toxic Substances Control Act]. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). CERCLA section 101(14), 42 U.S.C. § 9601(14). 5. Plaintiffs also submit a copy of the Environmental Management Element of the City of Alhambra's General Plan (the "Plan"), which they recently received in discovery. The Plan "describes existing conditions . . . and recommends various action programs" with respect to hazardous waste. One portion of the Plan, describing the existing conditions at the OII Site, admits: Landfill gas containing vinyl chloride continues to migrate offsite . . . Leachate Leachate containing hazardous substances has been detected in monitoring wells in the center of the landfill. 6. In support of this assertion, plaintiffs submitted a copy of Alhambra's contract with Athens. 7. Plaintiffs note that Alhambra also arranged for the disposal of other waste streams, including commercial waste and waste from city facilities, which are not addressed in this motion. 8. Plaintiffs submit the deposition testimony of Ron Arakelian, Jr. as support for their statements that from 1962 until 1975, Athens deposited all of Alhambra's residential at the OII Site and that after 1975, Athens deposited most of its waste there as well. His deposition, however, does not contain such clear statements. At best, Arakelian, Jr. states that at some point, although he does not recall when, the OII Site was the exclusive landfill used by Athens. He also asserts that there were other landfills in which Athens deposited residential refuse. He does not declare that Athens dumped most of its waste at the OII Site. 9. Plaintiffs' moving brief contains a long footnote which states that the term "hazardous organic solvents" refers to a long list of chemical substances, all of which are "hazardous substances" within the definition of CERCLA section 101(14). 10. Defendant Cities offer the declarations of their own experts, Byard and Rosenlund, to controvert Overton's statement that all paint manufactured between 1960 and 1975 contained hazardous substances. Defendants' experts declare that many paints and paint products, such as white washes and shellacs, did not contain hazardous substances. In their reply brief, however, plaintiffs point out that the shellacs and varnishes, etc. to which defendants' experts refer are not the oil-based paints that Athens' trash collectors recall seeing in Alhambra's waste. 11. The Cities submit an excerpt from the deposition of Larry Kachaturian, an employee at the OII Site between 1958 and 1975, who testified that there were two full time crews who scavenged the trash as it was dumped for disposal. 12. Plaintiffs refer to Uribe's testimony in their reply brief and statement of uncontested facts, but not in the text of their moving brief. 13. Laird's deposition occurred on October 23, 1990. He signed his declaration nearly four months later, on February 20, 1991. 14. Defendants' sole response to this issue consisted of challenging plaintiffs to authenticate the EPA Study. Plaintiffs submitted a certified copy of the final version of the Sturdy with their reply brief. 15. Plaintiffs correctly point out that the most recent authority discussing the "owned or possessed" requirement (albeit unpublished) concurs that control over the waste is sufficient. In CPC Int'l, Inc. v. Cordova Chemical Co., 1991 U.S. Dist. LEXIS 2784 (W.D. Mich. March 6, 1991), plaintiffs sought to hold a governmental agency liable as an arranger based on the agency's agreement to treat contaminated groundwater at a site, and then its subsequent refusal to do so. The court observed, The nexus issue is not a test of whether a party created or left hazardous substances or had title to them, but rather whether the party assumed responsibility for determining their fate. Id. at 12. The court held that because the agency had "assumed responsibility and control" for the groundwater, plaintiffs had sufficiently alleged a claim. Id. at 12. 16. § 40002 of the Cal. Pub. Res. Code provides: As an essential part of the state's comprehensive program for solid waste management, and for the preservation of health and safety, and the well-being of the public, the Legislature declares that it is in the public interest for the state, as sovereign, to authorize and require local agencies, as subdivisions of the state, to make adequate provision for solid waste handling, both within their respective jurisdictions and in response to regional needs consistent with the policies, standards, and requirements of this division and all regulations adopted pursuant to this division. The provisions of this division which authorize and require local agencies to provide adequate solid waste handling and services, and the action of to provide adequate solid waste handling and services, and the actions of local agencies taken pursuant thereto, are intended to implement this state policy. 17. This motion was brought by defendants County of Los Angeles and five of the six named GDDs, namely, those of Athens-Woodcrest-Olivita, Belvedere, Firestone, Mesa Heights, and Walnut Park. David Prager, counsel for the County GDDs informed plaintiffs that the sixth GDD named in their Complaint, the West Hollywood-Sherman GDD, is no longer in existence. In their moving brief, defendants request the Court to take judicial notice of plaintiffs' motion for leave to file their Second Amended Complaint, including the Declaration of Gregory S. Dovel and Exhibits A and B attached thereto. Plaintiffs complain that defendants referred to material outside the Second Amended Complaint in their motion to dismiss and suggest that the Court treat the instant motion as one for an order specifying issues without substantial controversy. In their reply brief, defendants point out that even though the motion refers to matters outside of the Second Amended Complaint, because those matters are judicially noticed, they may be the basis for a motion to dismiss for failure to state a claim. 18. Defendants contend that plaintiffs' Second Amended Complaint only asserts a claim for contribution and urge the Court to dismiss the entirety of plaintiffs' action against the GDDs. In opposition, plaintiffs respond that even if the Court dismisses their claim for contribution, they still have viable claims for recovery of response costs under section 107(a) and declaratory relief that defendants' motion does not address. In reply, defendants acknowledge that plaintiffs have asserted claims for cost recovery and declaratory relief but contend that because they are meaningful only in relation to plaintiffs' claim for contribution, the Court should dismiss those causes of action as well. Because defendants' motion to dismiss is denied, the Court declines to address this issue. 19. In any event, defendants fail to cite any authority in support of their argument that state statutes of limitations govern federal rights that existed under state common law before the enactment of the federal statute. 20. In fact, in Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 [17 ELR 20737] (9th Cir. 1987) and Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260 [20 ELR 21079] (9th Cir. 1990), two cases not cited by either party, the Ninth Circuit implied that certain California statutes regarding the imposition of liability would not govern an action for contribution under CERCLA. In Levin Metals, a corporation brought an action against a dissolved corporation which was the previous owner of its real property, for damages and declaratory relief under CERCLA. The trial court dismissed the action for failure to state a claim, and the Ninth Circuit affirmed. The Ninth Circuit held that CERCLA did not preempt California law in determining whether the dissolved corporation had capacity to be sued. In so holding, the Court stated that it was deciding only that California law determining "capacity" to be sued" was not preempted by CERCLA. Levin Metals, 817 F.2d at 1451. The Ninth Circuit implied that a different question would be raised by a "law limiting imposition of liability." Id. Louisiana-Pacific involved consolidated actions for cost recovery under CERCLA. One defendant brought a third-party claim against a corporation, seeking contribution or indemnity based on the corporation's status as a successor to the company which marketed hazardous waste for the defendant. The district court granted summary judgment in favor of the third party defendant, and the defendant/third-party plaintiff appealed. The Ninth Circuit affirmed, determining that although Congress failed to address the issue of corporate successor liability in CERCLA, Congress intended for the imposition of such liability. Louisiana-Pacific, 909 F.2d at 1262. In so holding, the Ninth Circuit explained that the issue of successor liability under CERCLA is governed by federal law because the issue concerned the imposition of liability rather than the capacity to be sued. Id. at 1263 and n.1. 21. Plaintiffs' Second Amended Complaint lists May 11, 1989 as the date on which their claim for contribution accrued. 22. In their motion for leave to amend, plaintiffs explained that the two closest cases point in opposite directions. In Johnson v. Fontana County Fire Protection Dist., 101 P.2d 1092 (Cal. 1940), the California Supreme Court held that a fire protection district (created and organized similarly to a GDD) is an independent entity. Fifteen years later, in Bauer v. County of Ventura, 289 P.2d 1 (Cal. 1955), the Court held that a storm drain maintenance district (also similar in structure to a GDD) is not a separate entity. In any event, however, defendants do not raise this issue in their motion to dismiss plaintiffs' Second Amended Complaint. 22 ELR 20773 | Environmental Law Reporter | copyright © 1992 | All rights reserved |