23 ELR 20665 | Environmental Law Reporter | copyright © 1993 | All rights reserved
Lincoln Properties, Ltd. v. HigginsNo. S-91-760 DFL/GGH (E.D. Cal. January 18, 1993)
The court holds that past and present owners of dry cleaning stores at a California shopping center are liable under § 7002 of the Resource Conservation and Recovery Act (RCRA) and § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for discharging through their floor drains wastewater containing tetrachloroethylene (PCE), which contaminated local groundwater. The court first holds that RCRA § 1004(27)'s domestic sewage exclusion does not apply to the PCE-laden wastewater, because the store owners' proposed interpretation of "domestic sewage" would render the word "domestic" meaningless. No upgradient residences are connected to the sewer system servicing the shopping center, so no discharges from any residences would pass through the sewers beneath the center. Any mingling of the stores' sewage with residential sewage occurred past the places in the sewage lines from where PCE leaked. The court rejects the defendants' argument that their waste falls within the U.S. Environmental Protection Agency's (EPA's) definition, at 40 C.F.R. § 261.4(a), of the exclusion's scope, because § 261.4 was promulgated pursuant to RCRA Subtitle C. The domestic sewage exclusion is contained in Subtitle A, and the shopping center owner brought its claim under Subtitle G. The court further holds that even if Subtitle C's regulations did apply, they would not govern the contaminants in question, because the contaminants never reached a publicly owned treatment works (POTW). The court holds that new EPA regulations intended to improve the control of hazardous wastes introduced into POTWs under the domestic sewage exclusion do not alter the scope of the exclusion for purposes of Subtitle G.
The court next holds that conditions at the shopping center present imminent and substantial harm to the environment, because the contaminants' invasion of the water table has significantly degraded the environment. A plume of PCE contamination occupies a substantial area of the shopping center's subsurface, and PCE and related chemicals have migrated vertically and laterally in the subsurface and may continue to so migrate. This movement presents a threat of further endangerment to the environment. The court holds that neither RCRA nor case law interposes an additional requirement that human or other life forms be threatened. The court notes that the contamination is not isolated, because the beneficial uses of the water beneath the center include domestic, municipal, agricultural, and industrial supply. Although this does not appear to establish a sufficient possibility of imminent and substantial endangerment to health to warrant injunctive relief, the possible health effects are relevant to the question of environmental endangerment.
The court holds that the endangerment stems from the handling, storage, treatment, transportation, or disposal of solid or hazardous waste. EPA has determined that PCE is a hazardous waste under RCRA, and even if PCE was not previously hazardous, it became so when it was discarded by the dry cleaning stores. The court holds that the stores handled hazardous wastes, because they were responsible for and dealt with PCE. They disposed of PCE when PCE or PCE-laden wastewater spilled or leaked from each dry cleaning facility into the soil and groundwater underneath the center.
The court holds that it is appropriate to grant the plaintiff equitable relief requiring the store owners to participate in monitoring and investigating the PCE in the groundwater, because the balance of hardships weighs heavily in the plaintiff's favor. The plaintiff has already expended a considerable amount of money and injunctive relief would not alter the dry cleaning stores' current practices. Further, a RCRA injunction requires the same financial contribution from the store owners as the court could award under CERCLA. The court also notes that an injunction will lead to a determination of the existence and extent of the endangerment through further investigation, monitoring, and testing, and will prevent irreparable injury to the environment.
The court next holds that the store owners are liable under CERCLA for the plaintiff's past and future response costs. Each dry cleaning shop is a "facility" within the meaning of CERCLA, because a hazardous substance — PCE — has come to be located at the shops. There has been a release at each shop, in that PCE is present in the soil and groundwater under each site. Also, it is undisputed that PCE was spilled, leaked, or discharged from each site. Although the shopping center owner has not established that PCE seeped through the facility foundations, the statute does not on its face provide that a release into the environment must be direct, and judicial imposition of this additional requirement would be inconsistent with the necessarily broad construction of "release." Further, the shopping center owner has incurred over $3 million in response costs, and the store owners are "operators" within the meaning of CERCLA § 101, because they had the authority to control PCE when it was released. The court holds that they are jointly and severally liable for the entire harm, because they have not established that the harm can be apportioned. The court holds that the defendants' releases of PCE were not federally permitted under CERCLA § 101(10)(J). This exemption applies only to the introduction of pollutants into a POTW, and the PCE that was released into the soil and groundwater never reached a POTW. Even if the shopping center's sewer lines were POTWs, the stores' releases into the lines did not comply with enforceable requirements in a local, federally approved pretreatment program. Before 1978, the county had no federally approved pretreatment program. In 1978, the county enacted a requirement that persons discharging industrial waste into a public sewer must first obtain a wastewater discharge permit, but no store owner ever obtained such a permit.
The court holds that the dry cleaning stores created a public nuisance, because the release of human-made, carcinogenic chemical compounds in the soil and groundwater under the shopping center interferes with the owner's free use and comfortable enjoyment of its property, and the nuisance affects a considerable number of persons. The fact that the nuisance is located on the plaintiff's property does not bar recovery. The court holds that the plaintiff established nuisance per se. A county statute provides that any condition existing in violation of any county statute is a public nuisance, and the store owners violated county discharge permit requirements. The court rejects the defendants' argument that they did not cause the contamination, because they created or assisted in the creation of the nuisance by depositing PCE in their floor drains. Their discharges of PCE were not expressly permitted by law, because they never obtained a discharge permit, in violation of county statutes. The shopping center owner did not consent to the discharges by providing in the leases that the store owners use the premises only for conducting dry cleaning operations, because the leases required the store owners to conduct their businesses in accordance with law and valid regulations, which they did not do.
Finally, the court holds that an individual who provided only financial contributions to one dry cleaner is not liable under RCRA or CERCLA as an "operator," because he was not intended to, and did not, have authority over any aspect of the store's operations. The court further holds that the wife of one of the store owners was not liable under CERCLA or RCRA as an "operator," because no evidence exists that she had authority to control PCE or that she was actively involved in or responsible for the dry cleaning shop's operations.
Counsel for Plaintiffs
J. Martin Robertson, Michael Donovan, Louis Green
Ware & Freidenrich
400 Hamilton Ave., Palo Alto CA 94301
Counsel for Defendants
Trainor, Robertson, Smits & Wade
701 University Ave., Ste. 200, Sacramento CA 95825
Donahue & Callaham
83 Scripps Dr., Ste. 200, Sacramento CA 95825
Feldman, Waldman & Kline
235 Montgomery St., Ste. 2700, San Francisco CA 94104
[23 ELR 20666]
Memorandum Opinion and Order and Related Cross-Actions
Plaintiff Lincoln Properties, Ltd. ("Lincoln") owns Lincoln Center, a shopping center in Stockton, California. Over the years, Lincoln Center's 110 businesses have included three dry cleaning facilities. Tests conducted in 1985 and 1986 revealed that water in SanJoaquin County wells adjacent to Lincoln Center had been contaminated by several hazardous chemical compounds used by the dry cleaners. Lincoln, which is statutorily liable for the contamination because it owns the property, now sues the past and present owners of the dry cleaning facilities in an effort to force the dry cleaners to investigate and remediate the contamination and reimburse Lincoln for investigation and cleanup costs it has incurred. Lincoln has moved for partial summary judgment, and the dry cleaners1 have cross-moved for partial summary judgment.2
I. Factual Background
A. Lincoln Center and the Dry Cleaning Defendants
Lincoln Center is located on a thirty-acre parcel of land at the intersection of Pacific Avenue and Benjamin Holt Drive in San Joaquin County near Stockton. Haines Decl., PP2, 3. Three dry cleaners have operated at Lincoln Center: (1) Norge Cleaners/ Norge Cleaning Village, (2) Finest Care Cleaners/ One-Hour Martinizing, and (3) Village Cleaners/Lincoln Village Cleaners.
The dry cleaning business known as Norge Cleaners and Norge Cleaning Village operated at Lincoln Center from 1961 to 1987. See Hein and Crosby's Responses to Interrogatory Nos. 1 and 4 and Responses to Requests for Admission Nos. 2 and 3. Defendant Bennie Hein leased and occupied the premises from December 1961 to December 1987. Exhibits J. K and L to Corrected First Amended Complaint. Defendant A.A. Mederos also leased and occupied the premises from December 1961 to December 1971, while defendant Bonnie Crosby leased and occupied the premises from February 1978 to December 1987. Exhibits J and L to Corrected First Amended Complaint.
Finest Care Cleaners, previously known as Lincoln Center Martinizing and One-Hour Martinizing, has operated a dry cleaning business at Lincoln Center from 1966 to the present. See Monroe Hess' Response to Interrogatory No. 4. Defendant James Murray leased the premises from October 1965 to 1966, and defendant Monroe Hess has leased the premises from October 1965 through the present and has occupied the facility from August 1966 through the present. Monroe Hess Dep., 47:5 to 49:19; Exhibits O, P and Q to Corrected First Amended Complaint. Monroe Hess has operated the dry cleaning business from 1966 through the present. See Monroe Hess' Response to Interrogatory No. 4.
Village Cleaners, which has also done business as Lincoln Village Cleaners and Lincoln Village Cleaners, Inc., has operated a dry cleaning business at Lincoln Center from 1959 to January 1992. Moser Dep., 13:20 to 14:21; Alquist's Response to Interrogatory No. 4. Defendant Wilbert Moser leased the premises from May 1959 to June 1980 and occupied the premises from 1959 to 1979. Moser Dep., 14:4-21; Exhibits D through I to Corrected First Amended Complaint. Defendant Dwight Alquist leased the premises from November 1978 to June 1981, and occupied the premises from January 1979 to June 1981. CIGNA's Response to Interrogatory No. 1; Exhibit M to Corrected First Amended Complaint. Defendant Jack Alquist has leased the premises from November 1978 to the present and has occupied the premises from January 1979 to the present. Jack Alquist's Response to Interrogatory No. 1; Exhibits M and N to Corrected First Amended Complaint. The dry cleaning business was operated by Moser from 1959 to 1979, and by Dwight and Jack Alquist from 1979 to June 1981; from June 1981 to January 1992, Jack Alquist operated the business alone. See Moser Dep., 13:21 to 16:1; CIGNA's Response to Interrogatory Nos. 4, 5; and Jack Alquist's Response to Interrogatory No. 4 and Response to Requests for Admission Nos. 2, 3 and 4.
The leases permitted defendants to use their premises for cleaning and laundry only. See, e.g., Exhibit L to Corrected First Amended Complaint, PP8-9. All lessees agreed to conduct their businesses "in accordance with law and valid regulations." Id. P9. In some leases, Lincoln agreed to maintain the sewers beneath the property. Exhibits N and Q to First Amended Complaint, P37. The sewers were in fact maintained by both Lincoln and San Joaquin County. Haines Dep., 35:7-36:12; Workman Dep., 94:10-13, 96:2-10.
B. Dry Cleaners' Use of PCE
Tetrachloroethylene, also known as "PCE," is a hazardous, non-naturally occurring chemical compound. Farr Summary Judgment Decl., P5; Farr Preliminary Injunction Decl., P7(a); see also 40 C.F.R. Table 302.4 and 40 C.F.R. Part 261. PCE is frequently used as a dry cleaning solvent. Farr Preliminary Injunction Decl., P7(a). Trichloroethylene ("TCE") and cis-1,2-dichloroethylene ("DCE") are degradation products of PCE. Farr Preliminary Injunction Decl., P10.b(2).
All three dry cleaning facilities used PCE. From 1961 to 1987, Norge Cleaners operated dry cleaning machines which used PCE to clean clothes. Hein and Crosby's Response to Request for Admission [23 ELR 20667] No. 18. Norge Cleaners also stored dry cleaning solvents containing PCE. Id. Similarly, from 1966 to the present, Finest Care Cleaners stored PCE and operated machines which used PCE. Monroe Hess' Response to Request for Admission No. 18. Village Cleaners used and stored PCE from 1959 to 1992. Jack Alquist's Response to Request for Admission No. 18.
C. PCE Discharges
Plaintiff has established that each of the dry cleaners discharged wastewater containing PCE through its floor drains.
1. Norge Cleaners. From 1962 to 1983, Norge Cleaners used sixteen Norge dry cleaning machines. Hein and Crosby's Response to Interrogatory Nos. 6, 9. "Water separators" were attached to each. Hein and Crosby's Response to Interrogatory No. 9; Hein Dep., 108:13-15. The water separators were intended to separate PCE from water, so that PCE would be recycled to the dry cleaning machine while waste water was discharged to a floor drain. Fisher Decl., PP10.d(2), 11.a(1)(c).
From 1983 to 1987, Norge Cleaners used two Suprema dry cleaning machines; a water separator was attached to each. Hein and Crosby's Response to Interrogatory Nos. 6, 9; Yordy Dep., 24:8-23; Hein Dep., 234:27-235:5. The separators, again, were intended to separate reclaimed PCE. Fisher Decl., P11.a(2)(b).
Norge Cleaners discharged PCE or PCE-laden wastewater into its floor drains. In 1974, PCE was accidentally released into the sewer through the floor sewer drain when a boot connector on a holding tank broke. Hein and Crosby's Response to Interrogatory Nos. 14, 15. The size of the spill is unclear. See Fisher Decl., P11.a(3)(a) (estimating 500 to 1,000 gallons of PCE were discharged); but see Cotulla Decl., PP3-4; Plaintiff's Ex. 199 (defendant Hein says 140 gallons were spilled, of which thirty to forty went into the floor drain).
In addition, PCE-laden [sic] wastewater was sometimes discharged from the water separators attached to both the Norge and the Suprema machines during the normal use of these machines. Fisher Decl., P11.a(3)(b). According to Lincoln's expert,
the wastewater discharged from these water separators contained some amount of [PCE] under normal conditions due to the solubility of [PCE] in water.
Id. The dry cleaners' expert, James Ambrose, has conceded that water discharged from a separator contains PCE under normal operating conditions. Ambrose Dep., 211:12-23.
PCE-laden wastes passed from the floor drains into the sewer system. Samples taken from the sewer lateral connected to Norge Cleaners contained PCE in concentrations ranging from 0.5 to 1,180 parts per billion (ppb). Plaintiff's Ex. 38 at 1. Based on these findings, and because no other possible source of PCE discharge into this sewer line had been identified, plaintiff's expert geohydrologist, Anne Farr, concluded that PCE was discharged from Norge Cleaners to the sewer lines. Farr Preliminary Injunction Decl., P8.b(3) (a).3
Lincoln also suggests that PCE-laden wastes passed directly through the Norge Cleaners concrete slab foundation into the soil under the foundation. However, there is no direct evidence of this. See Plaintiff's Reply to Response to Statement of Undisputed Material Facts, 37:28-38:1. In fact, Lincoln's own investigators previously concluded that PCE could not have permeated the foundation, and suggested that the soil could "only" have been contaminated by sewer leaks. See Plaintiff's Ex. 8 at 3-1. Thus, Lincoln's permeation theory is conjectural at best and certainly not established by undisputed evidence.4
2. Finest Care Cleaners. From 1966 to 1980 or 1981, Finest Care Cleaners used a Martin dry cleaning system, which included a Martin washer extractor machine, a Martin reclaimer, a PerCombo filter/muck cooker and a Vic Vapor Absorber ("Sniffer"). Winter Dep., 41:18 to 47:18; Monroe Hess' Response to Interrogatory No. 6; Fisher Decl., P11.b(1). Water separators were attached to the reclaimer machine, the filter/muck cooker and the Sniffer. Fisher Decl., P11.b(1)(f). The separators that were attached to the filter/muck cooker and the Sniffer discharged water to a floor drain, while the separator connected to the reclaimer dripped directly onto the floor. Hess Decl., PP10-14; Winter Dep., 81:1-13.
From 1980 or 1981 to the present, Finest Care Cleaners has used a Renzacci dry cleaning system, which includes a Renzacci dry cleaning machine, a cartridge filtration unit and a Puritan Still. Fisher Decl., P11.b(2). A water separator is attached to the machine. Id.
Defendants admit that four spills of PCE or PCE-laden wastewater have occurred. First, sometime in the 1970's, a hose connecting the Martin machine to the filter split, and PCE spilled out and covered a four feet by four feet area on the floor. Monroe Hess' Response to Interrogatory No. 15; Winter Dep., 117:20-124:19. Second, in 1980 or 1981, a hose clamp on the Renzacci machine failed, and the spill covered a four by six or seven foot area of the floor. Monroe Hess' Response to Interrogatory No. 15; Winter Dep., 152:6-155:16.
The third accident happened two to three years ago: Monroe Hess dropped a bucket of PCE on the floor; the bucket broke, and about two-and-one-half gallons of PCE spilled out. Monroe Hess Dep., 141:22-145:8. Finally, sometime in the last year, the hose connecting the pipe from the filtration system to the Renzacci machine failed, and PCE spilled onto an area covering two feet of the floor. Winter Dep., 208:14-20; Maestas Dep., 39:3-43:7.
In addition to the four acknowledged spills, Lincoln's expert asserts that since the 1980 or 1981, PCE has regularly dripped onto the floor during the process of draining the cartridge filtration unit. Fisher Decl., P11.b(4)(a). There is some evidence to support this. Maestas Dep., 44:6-48:7.
Wastewater was discharged from the Martin reclaimer machine separator to the floor,5 and from the muck cooker and Sniffer separators to a floor drain. Winter Dep., 78:20-81:15. This wastewater contained PCE. Fisher Decl., P11.b(4)(b); see Ambrose Dep., 211:12-23. The PCE-laden wastewater passed into the sewers. Water from the Finest Care sewer laterals contained PCE in concentrations ranging from 18.1 to 283 ppb. Plaintiff's Ex. 38 at 1. Because Finest Care's sewage mixes with that of Norge Cleaners, Lincoln's expert was unable to attribute this PCE solely to discharges from the Finest Care facility. Farr Preliminary Injunction Decl., P8.b(3)(c). The evidence of PCE permeatingthe concrete foundation is again indirect and conjectural.6
3. Village Cleaners. Village Cleaners used three different dry cleaning systems. From 1959 to 1968, the facility used a Detrex washer extractor, reclaimer and still; water separators were attached to the reclaimer and still. Fisher Decl., P11.c(1); Moser Dep., 18:2-19:2. From 1968 to 1986, Village Cleaners used an Ametek system, which included an Ametek washer extractor, a Hoyt reclaimer, a Puritan still and a Hoyt vapor recovery unit. Alquist's Response to Interrogatory No. 9; Fisher Decl., P11.c(2). From 1986 to 1992, Village Cleaners used a Frimair dry cleaning machine and still. Alquist's Response to Interrogatory No. 9; Fisher Decl., P11.c(3).
Village Cleaners admits that one PCE spill occurred prior to 1982 when the dry cleaning machine door opened in the middle of the cleaning cycle and "a small amount" of PCE spilled onto the floor. [23 ELR 20668] Alquist's Response to Interrogatory No. 15. Plaintiff's expert estimates the spill's volume at 6.23 gallons. Fisher Decl., P11.c(4)(a).
Village Cleaners regularly discharged PCE-laden wastewater. From 1959 to 1968, when the Detrex system was in use, wastewater was discharged from the separators to a floor drain. Moser Dep., 41:11-21. From 1968 to 1986, wastewater was discharged from the Hoyt system separators to containers or buckets on the floor, and was then poured into the floor drain. Alquist Dep. Under "normal operating conditions," the wastewater contained PCE due to the chemical's solubility in water. Fisher Decl., P11.c(4)(c); see Ambrose Dep., 211:12-23.
Samples collected from the sewer lateral connected to Village Cleaners contained PCE in concentrations ranging from 5.7 ppb to 580 ppb. Plaintiff's Ex. 38 at 1. Based on these concentrations, and because no other possible source had been identified, Lincoln's expert concluded that PCE was discharged from Village Cleaners to the sewer lines. Farr Preliminary Injunction Decl., P8.b(3)(b).
Plaintiff again contends that PCE-laden wastes passed through the foundation into the soil. However, on the present record, the court cannot so find.7
D. The Water Supply
The ground underneath Lincoln Center and the surrounding area contains three distinct water-bearing zones, or aquifers.8 Farr Preliminary Injunction Decl., P9.a. Zone "A" is thirty-five to sixty-five feet below the surface; Zone "B" is seventy to 150 feet underground; and Zone "C" is 170 to 260 feet below the surface. Id. These zones are separated by clay layers that restrict the vertical flow of water. Exhibit C-1 to Nakano Dep. However, groundwater may be transported vertically from Zone "A" to Zone "B" due to the downward hydraulic gradient between these zones. Farr Preliminary Injunction Decl., P10.d(2)(a). Zone "C" produces the largest quantities of water. Plaintiff's Ex. 10 at ES.1.
Fourteen municipal wells and at least 160 private wells are located within one mile of Lincoln Center. Farr Preliminary Injunction Decl., P11.b(1). The municipal wells draw water from the C aquifer; the private wells draw from Zones B and C. Phillips Decl., P9; Plaintiff's Ex. 11, Table 1. Four San Joaquin County wells are located very close to Lincoln Center. However, because of PCE contamination and the threat of further contamination by PCE and other hazardous substances, these wells have been removed from service and are being destroyed. Farr Preliminary Injunction Decl., PP11.b(1), (2); Delucchi Decl., PP3, 4. Four City of Stockton wells and two Cal Water wells are hydrologically downgradient of Lincoln Center, and three of the City wells are "within the expected pathway of the PCE and TCE plume." Id. P11.b(1).
E. Site Investigations
On October 1, 1985, the San Joaquin Local Health District notified Lincoln that PCE "in excess of State Action levels" had been detected in County Well No. 1. Plaintiff's Ex. 103. On August 18, 1987, the State Regional Water Quality Control Board ("RWQCB" or "Board") instructed plaintiff to "submit a workplan which details a proposed investigation of the ground water problem" at Lincoln Center. Plaintiff's Ex. 104. In August 1987, Lincoln hired an environmental engineering firm, Leedshill-Herkenhoff, Inc.,9 to investigate the extent of the contamination. Haines Preliminary Injunction Decl., P17. The engineers found PCE, TCE and DCE in the groundwater and soil beneath Lincoln Center and the surrounding area. Id. P17.b.
In the transmittal letter accompanying the report of Leedshill-Herkenhoff's August 1988 groundwater investigation (the "Phase I Report"), Project Engineer Gerry Nakano concluded that the PCE and TCE "appears [sic] to have leaked through joints in the existing sewer line and migrated to the water table." Plaintiff's Ex. 8, Transmittal Letter. The Phase I Report stated that "it would only be possible for this material to enter the permeable bedding material underneath the foundation through leaks in the joints of the sewer pipe, or through faulty or leaking connections of the drain to the sewer." Plaintiff's Ex. 8 at 3-1.
Subsequent groundwater investigations directed by Nakano revealed PCE in Zones A and B in concentrations as high as 32,000 ppb, TCE in concentrations up to 110 ppb, and DCE in concentrations as high as 530 ppb. Nakano Decl., P9.f(1) and Plaintiff's Ex. 33. Nakano also found PCE in the soil under the cement slab foundations at the three facilities; however, these samples were taken primarily from locations near the drain pipes. Nakano Decl., P9.f(2); Nakano Dep., 306:13-307:1-6. PCE was also found in samples collected from the sewer lateral and main sewer trunk lines connected to drains at the three dry cleaners. Nakano Decl., PP9.f(4), (5).
Anne Farr, project manager of the investigation since January 1992,10 concluded that by 1990, PCE had spread laterally in Zone A beyond Lincoln Center and toward both public and private wells. Farr Preliminary Injunction Decl., P10.c; Plaintiff's Ex. 52. Farr also concluded that PCE had been transported vertically to Zone B by "natural conditions" and to Zone C via well conduits. Farr Preliminary Injunction Decl., P10.d.11 As to Zone C contamination, Farr posits that PCE in Zone A enters wells sunk to Zone C through cracks in the well casings. Once in the well, the PCE migrates down.12 Defendants do not dispute that such cracks permit the migration of PCE from Zone A downward. However, no contaminants have actually been detected in Zone C. See, e.g., Plaintiff's Ex. 11 at ES.i.
Three City wells, which draw water from Zone C, are "within the expected pathway of the PCE and TCE plume." Well No. 11, which is the "most critical potential exposure route," now operates up to 50% of the time in the summer and not at all in winter. Farr Preliminary Injunction Decl., PP11.b(1), (3). There is no direct evidence of breaks in the casing of Well No. 11; however, there are breaks in the casings of other wells of similar age and construction. Farr Dep., 247:22-24; Phillips Dep., 112:11-115:22. No PCE has been found in Well No. 11. Nakano Dep., 295:19-296:7.
Farr, using a mathematical model she developed, predicted future reasonable maximum concentrations of PCE in groundwater, and concluded that "[t]he primary existing potential receptor of this groundwater containing PCE is City of Stockton Well No. 11" and that "PCE in groundwater will continue to migrate towards [this well], eventually increasing to a concentration of approximately 65 [ppb]." Farr Preliminary Injunction Decl., P10.e(4).13 Under Farr's scenario, PCE in Well No. 11 water will reach 5 ppb in 2007, 2009 or 2015, depending on the direction of groundwater flow. See Defendant's Ex. D to Byard Deposition (November 25, 1992).14
Farr also suggests that PCE from the three dry cleaning facilities has commingled in the subsurface and that "[g]iven the technology available today, it is scientifically impossible to determine which portion of the groundwater has been contaminated with PCE by particular sources of PCE." Farr Summary Judgment Decl., P10.15
The dry cleaners' expert, Mark Liebe, challenges Farr's model on various grounds. See Liebe Decl., PP13-25. Liebe takes issue with the fraction organic carbon content and organic carbon/water partition coefficient values used by Farr, and concludes that her model overestimates the speed at which PCE is traveling toward Well No. 11. Id. [23 ELR 20669] Liebe posits that PCE in Well 11 will reach 5 ppb no sooner than thirty to seventy years from now.
On January 10, 1992, Lincoln Properties notified the dry cleaning defendants and the appropriate government agencies of the "endangerment" caused by contamination at Lincoln Center. Haines Decl., P19. This notice described the nature and condition of the contamination as well as the response actions taken by plaintiff, and set forth the legal and factual bases of Lincoln Properties' claims against each defendant. Id. P20.
F. Health Effects of PCE
According to James Byard, plaintiff's expert toxicologist, PCE has been linked to liver cancer in mice, and the United States Environmental Protection Agency ("EPA") has estimated a lifetime cancer risk of 7.5 X 10<-6> for ingestion of 5 ppb of PCE in drinking water. Byard Decl., P9.f(1). TCE has also produced a high incidence of liver cancer in mice, and the lifetime cancer risk for ingestion of 5 ppb of TCE in drinking water is estimated at 1.6 x 10<-6>. Id. P9.f(2). Farr has estimated that 4,000 people per day may use water from Well No. 11. Farr Preliminary Injunction Decl., P11.b(3). Byard estimates that if 4,000 people continue to use water from Well No. 11 for the next seventy years, the sum of the excess cancer risk resulting from exposure to PCE and TCE is 0.03 to 10 cancers. Id. P8.c. However, Linda Henry, defendants' toxicologist, characterizes the excess cancer risk as a "theoretical and hypothetical upperbound probability,"16 and asserts that the excess cancer risk posed by the Lincoln Center site over the next ten years is 5 X 10<-7>, which is below what Henry characterizes as the EPA's maximum acceptable risk range.17 Henry Decl., PP11-18. Henry concludes that the site does not present an imminent or substantial danger. Id. P20.
G. Proposals for Further Investigation
Farr has recommended that additional investigation be conducted to define the lateral and vertical extent of the contaminants in the soil and groundwater under Lincoln Center. Farr Preliminary Injunction Decl., P12. According to Farr, final remediation cannot be undertaken until the extent of contamination is defined, and as time elapses, the groundwater becomes more degraded and the difficulty of remediation increases. Id.
In July 1991, Nakano proposed a workplan (the "Phase III Workplan") by which groundwater monitoring wells would be installed in all three aquifers, groundwater would be sampled and analyzed, and soil borings would be drilled and soil samples collected. Nakano Decl., P10; Plaintiff's Ex. 39-A. The Regional Water Quality Control Board approved this plan on August 22, 1991. Nakano Decl., P10. Nakano also formulated an "Early Warning System Workplan" and a "Groundwater Monitoring Program Workplan," both of which have been approved by the Board. Plaintiff's Ex. 41-44. The former calls for the installation of an "early warning monitoring well" upgradient of City Well No. 11 to detect PCE migration in Zone "A" groundwater" before it reaches the well. Nakano Decl., P10.b; Plaintiff's Ex. 41. The groundwater monitoring plan provides for regular sampling and analysis of groundwater samples as well as measurements of depth to groundwater in monitoring wells. Nakano Decl., P10.c; Plaintiff's Ex. 43.
II. Procedural History
Plaintiff filed its complaint on June 11, 1991. On May 21, 1992, the court granted plaintiff leave to amend to add a claim under the Resource Conservation and Recovery Act ("RCRA"). Plaintiff's Corrected First Amended Complaint, filed on May 26, 1992, contains a RCRA claim for injunctive relief and restitution of abatement costs, as well as three Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") claims for response cost recovery, contribution and declaratory relief. Plaintiff also asserts sixteen state law claims.18 The corrected first amended complaint names twelve dry cleaning defendants,19 as well as San Joaquin County and the Lincoln Village Maintenance District.20
The court's April 2, 1992 status order divided this case into phases, with "Phase I" including CERCLA liability (except for issues relating to necessity and consistency of costs incurred with the National Contingency Plan), RCRA liability and plaintiff's motion for injunctive relief. On May 26, 1992 the court scheduled Phase I of the case. On November 16, 1992 the court heard argument on the motions now before it.
Lincoln alleges that the dry cleaning defendants created and contributed to the handling and disposal of PCE and TCE-laden aqueous wastes. Corrected First Amended Complaint, PP74-84.
Under RCRA, Lincoln seeks restitution for incurred cleanup costs and an injunction ordering defendants to undertake the following:
all of the environmental engineering, investigation, studies, monitoring and response actions necessary to respond to, abate and remediate fully and promptly the Solid Waste and Hazardous Waste contamination at and emanating from Lincoln Center.
Prayer for Relief, P1. For the reasons stated below, the court finds that injunctive relief ordering the dry cleaning defendants to investigate and monitor the extent of PCE contamination should be granted.
A. Statutory Framework
The Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of 1984 ("1984 Amendments"), Pub. L. No. 98-616, 98 Star. 3221, regulates the disposal of hazardous and solid wastes. Congress has declared that the generation of hazardous waste should be reduced or eliminated as expeditiously as possible, and "[w]aste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment." 42 U.S.C. § 6902(b). Thus, RCRA is "a cradle-to-grave statute providing a full range of remedies designed to protect both health and the environment." United States v. Borowski, 1992 WL 266833 at *4 [23 ELR 20102] (1st Cir. Oct. 7, 1992).
RCRA includes two remedial provisions. First, RCRA § 7003(a), 42 U.S.C. § 6973(a), authorizes the Administrator of the United States Environmental Protection Agency ("EPA") to bring a civil enforcement action against any person who has contributed or is contributing to past or present storage, treatment, transportation or disposal of any solid or hazardous waste that "may present an imminent and substantial endangerment to health or the environment."21
RCRA also contains a citizen suit provision. RCRA § 7002(a), 42 U.S.C. § 6972(a), permits private parties to bring suit against "any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order," as well as against "any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. §§ 6972(a)(1)(A), (B). Subsection (b) of § 6972, added by Congress in 1984 in an attempt to "invigorate citizen litigation," prescribes limitations and prerequisites, including notice requirements, for citizen suits. See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1158 [19 ELR 20374] (9th Cir. 1989). The citizen suit [23 ELR 20670] provision is "designed to provide a private means of obtaining the same relief that the EPA Administrator has previously been authorized to seek under RCRA." Middlesex County Board of Chosen Freeholders v. State of New Jersey Department of Environmental Protection, 645 F. Supp. 715, 721 [17 ELR 20475] (D.N.J. 1986).
Section 6972(a) authorizes injunctive relief: a court may "restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste" and may "order such person to take such other action as may be necessary." In order to obtain injunctive relief, a plaintiff must establish three elements:
1) That the conditions at the site may present an imminent and substantial endangerment;
2) That the endangerment stems from the handling, storage, treatment, transportation or disposal of any solid or hazardous waste; and
3) That the defendant has contributed or is contributing to such handling, storage, treatment, transportation or disposal. United States v. Conservation Chemical Co., 619 F. Supp. 162, 199-200 [16 ELR 20193] (W.D. Mo. 1985).22
B. Domestic Sewage Exclusion
Before reaching the merits of plaintiff's RCRA claim, the court first considers the dry cleaning defendants' contention that RCRA does not govern their conduct. Lincoln's claim is brought under § 6972(a), which authorizes a civil action against one who has contributed or is contributing to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste. "Hazardous waste" is solid waste with certain properties. See 42 U.S.C. § 6903(5). "Solid waste," in turn, is statutorily defined to include:
any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33, or source, special nuclear, or byproduct material. . . .
42 U.S.C. § 6903(27) (emphasis added).
The dry cleaners maintain that the wastes at issue here fall under the "domestic sewage exclusion." Each dry cleaning facility had toilets and sinks which discharged into the same sewer that received the hazardous wastes. See Alquist Decl., P20; Monroe Hess Decl., P15. Thus, according to defendants, any PCE or PCE-laden wastewater discharged was "solid or dissolved material in domestic sewage" within the meaning of § 6903(27).
The only court to consider the scope of the domestic sewage exclusion, however, has squarely rejected defendants' position. In Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180 [20 ELR 20211] (1st Cir. 1989), cert. denied, 110 S. Ct. 1476 (1990) ("PRASA"), plaintiffs sued a group of factory owners under § 7002. The factories were all located in an industrial park. The sewer lines which connected the industrial park to a sewage treatment plant contained only wastes from the industrial park, and did not connect with lines running from private houses. Id. at 182. The district court concluded that because the solid industrial wastes from the factories mixed with untreated sanitary wastes such as waste from toilets at the workplace, plaintiffs' claims were precluded by § 6903(27). Id.
The First Circuit reversed, concluding that "domestic sewage" means sewage that comes from residences, and that even if the wastes at issue had mixed with untreated sanitary waste that came from the workplace (rather than from residences) the domestic sewage exclusion would not apply. The court relied on several factors in reaching this conclusion. First, the plain meaning of "domestic" is "relating to the household or the family . . . connected with the supply, service, and activities of households and private residences." Id. at 184-85 (quoting Webster's Third New International Dictionary 671 (1976)). Second, § 6903(27) defines "solid waste" by source, rather than just type,23 so "domestic" sewage means sewage from a domestic source. Id. at 185. Third, the construction urged by defendants contravenes the purposes of RCRA, since "it is difficult to believe Congress would wish to exempt potentially large amounts of industrial waste from the statute's scope simply because they mix with some small amount of bathroom sewage." Id. Fourth, Congress intended that the scope of RCRA's injunctive relief provision be broad, and "it would seem somewhat anomalous to interpret the exception broadly and thus significantly narrow the statute's reach." Id. Finally, the United States Environmental Protection Agency ("EPA"), as amicus, argued against defendants' proposed construction, and the court accorded considerable weight to the agency's views of a statute it administers. Id. at 185-86; see Chevron, U.S.A., Inc. v. NRDC, 104 S. Ct. 2778, 2781-82 (1984).
Defendants' attempt to distinguish PRASA is unavailing. The dry cleaners note that here, the sewer system served more than 100 businesses, none of which could be called "industrial"; by contrast, the discharges at issue in PRASA were from industrial sources. This is irrelevant: the crux of the PRASA analysis was that the waste was not residential and did not mix with residential waste before leaking. Here, similarly, "there are no residences connected to the sewer system servicing Lincoln Center which are upgradient of Lincoln Center, so there are no discharges from any residences that would pass through the sewers beneath Lincoln Center." Smith Decl., P16. The mere fact that the commercial establishments had toilets and sinks does not change the result. PRASA, 888 F.2d at 184. The court cannot adopt the dry cleaners' proposed interpretation of "domestic sewage," which would render the word "domestic" meaningless.
The construction urged by the dry cleaners would allow a chemical plant to avoid RCRA's reach by installing a toilet. At oral argument, counsel for the dry cleaners asserted that discharges from this hypothetical plant would be governed by the Clean Water Act. The Clean Water Act, however, establishes pretreatment standards for discharges into a "publicly owned treatment works"; it does not apply to contaminants that are discharged into groundwater and never reach a "treatment works." 33 U.S.C. §§ 1317(b), (c); see McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1194-95 [19 ELR 20124] (E.D. Cal. 1988) (discharges to groundwater are not prohibited by Clean Water Act).
The dry cleaners also proffer some evidence that sewage from the dry cleaning facilities mixed with sewage from residences after entering the sewer lines but before reaching the publicly owned treatment works. See, e.g., Delucchi Dep., 129:3-13. But this fact does not bring the dry cleaners' discharges within the scope of the domestic sewage exclusion. The exclusion covers "solid or dissolved material in domestic sewage." Any mingling of the dry cleaners' sewage with residential sewage occurred "downgradient from," or past, the portions of the sewage lines from which PCE leaked. Thus, the PCE at issue — the PCE that leaked into the soil and groundwater — did not mix with sewage from residential sources and was therefore never "solid or dissolved material in domestic sewage."
The dry cleaners also argue that EPA has defined the scope of the domestic sewage exclusion by regulation. 40 C.F.R. § 261.4(a) provides that
The following materials are not solid wastes for the purpose of this part:
(1)(i) Domestic sewage; and
(ii) Any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned treatment works for treatment. 'Domestic sewage' means untreated wastes that pass through a sewer system.
Defendants assert that their wastes fall within this definition of "domestic sewage."
This argument, however, was also squarely rejected in PRASA. Section 261.4 was promulgated pursuant to Subtitle C of RCRA,24 which provides a comprehensive regulatory program for "cradle-tograve" [23 ELR 20671] management of hazardous waste and authorizes the EPA Administrator to list and identify hazardous wastes which will be subject to this program. See 42 U.S.C. § 6921(b). The domestic sewage exclusion is contained in RCRA Subtitle A, the statute's definitional section. See 42 U.S.C. § 6903. Section 6972, under which Lincoln brings its RCRA claim, is part of RCRA Subtitle G,25 which grants broad remedial authority to the federal courts. As the First Circuit explained,
[d]efining 'solid waste' more narrowly for purposes of Subtitle C than for purposes of §§ 7002 and 7003 [42 U.S.C. §§ 6972, 6973] may make sense. Subtitle C contains highly detailed recordkeeping, notification, and permit requirements; to ease administrative burdens, EPA may want to include those factory pipes that contain only a little sanitary waste, but exclude those that contain little else. Sections 7002 and 7003, on the other hand, are invoked only to respond to imminent and substantial endangerments to health or the environment; in such a context, involving a present threat to public welfare and no ongoing administrative duties, EPA may want to include even those factory pipes that contain a relatively small proportion of industrial wastes.
PRASA, 888 F.2d at 187. Even if the Subtitle C regulations did apply generally, they would not govern the contaminants in question, which escaped into the soil and groundwater and never reached "a publicly-owned treatment works." See 40 C.F.R. § 261.4(1)(ii).
Defendants also suggest that recent EPA regulations bolster their position. In 1990, EPA, in response to a congressional directive, promulgated regulations to "improve control of hazardous wastes introduced into [publicly owned treatment works] under the Domestic Sewage Exclusion." 55 Fed. Reg. 30082 (July 24, 1990). The preamble to the regulations states that "[t]he exclusion thus covers industrial wastes discharged to [publicly owned treatment works] sewers containing domestic sewage, even if these wastes would be considered hazardous if disposed of by other means." Id. However, the new regulations do not alter the scope of the exclusion for purposes of Subtitle G. Instead, they were promulgated under Subtitle C to "assure that hazardous wastes discharged to POTWs are adequately controlled to protect human health and the environment." Id. at 30083.26
In sum, the dry cleaners' PCE-laden wastewater was not "solid or dissolved material in domestic sewage" within the meaning of § 6903(27). RCRA therefore governs these wastes.
C. RCRA Elements
In order to succeed on its RCRA claim, Lincoln must establish (1) that the conditions at Lincoln Center may present an imminent and substantial endangerment to health or the environment; (2) that the endangerment stems from the handling, storage, treatment, transportation or disposal of any solid or hazardous waste; and (3) that the dry cleaners have contributed or are contributing to such handling, storage, treatment, transportation or disposal. Conservation Chemical, 619 F. Supp. at 199-200; see 42 U.S.C. § 7002(a)(1)(B). The court now turns to these elements.
1. Imminent and Substantial Endangerment. Section 6972(a)(1)(B) authorizes injunctive relief where the site conditions "may present an imminent and substantial endangerment to health or the environment." The nature of this wording must be briefly explored. First, it is significant that the word "may" precedes the standard of liability: "[t]his is 'expansive language,' which is 'intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" Dague v. City of Burlington, 935 F.2d 1343, 1355 [21 ELR 21133] (2d Cir. 1991) (quoting United States v. Price, 688 F.2d 204, 213-14 [12 ELR 21020] (3d Cir. 1982)) (emphasis in Dague), rev'd in part on other grounds, 112 S. Ct. 2638 (1992). Thus, § 6972's application is not limited to emergency situations. United States v. Waste Industries, Inc., 734 F.2d 159, 165 [14 ELR 20461] (4th Cir. 1984).27
Second, "endangerment" means a threatened or potential harm and does not require proof of actual harm. Dague, 935 F.2d at 1356. As one court recognized in construing the phrase "will endanger" in the Clean Air Act, "[t]he meaning of 'endanger' is not disputed. Case law and dictionary definition agree that endanger means something less than actual harm. When one is endangered, harm is threatened; no actual injury need ever occur." Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 13 [6 ELR 20267] (D.C. Cir. 1976), cert. denied, 96 S. Ct. 2662 (1976).
Third, a finding of "imminence" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present. Dague, 935 F.2d at 1356; see also Conservation Chemical, 619 F. Supp. at 193 ("An endangerment need not be immediate to be 'imminent,' and thus warrant relief"). An endangerment is "imminent" if factors giving rise to it are present, even though the harm may not be realized for years. Conservation Chemical, 619 F. Supp. at 193-94. Finally, the word "substantial"
does not require quantification of the endangerment (e.g., proof that a certain number of persons will be exposed, that 'excess deaths' will occur, or that a water supply will be contaminated to a specific degree). Instead, the decisional precedent demonstrates that an endangerment is substantial if there is some reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or a threatened release of a hazardous substance if remedial action is not taken.
Id. at 194. However, injunctive relief should not be granted "where the risk of harm is remote in time, completely speculative in nature, or de minimis in degree." United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1109 [12 ELR 20954] (D. Minn. 1982) (quoting H.R. Rep. No. 1185, 93d Cong., 2d Sess. 35-36, reprinted in 1974 U.S. Code Cong. & Ad. News 6454, 6487-88).
Here, Lincoln has established by undisputed evidence that the contamination at Lincoln Center may present an imminent and substantial threat of harm ("endangerment") to the environment. RCRA does not define the term "environment." However, it presumably encompasses the air, soil and water, including groundwater.28 In this case, the environment has already been degraded significantly by the contaminants' invasion of the water table. See, e.g., Farr Preliminary Injunction Decl., P11.a. The groundwater in Zones A and B now contains PCE, TCE and DCE in concentrations far exceeding federal and state standards. Nakano Decl., P9.f(1); Plaintiff's Ex. 33.29 Zone C water may have been contaminated by mixing in the wells with water from other Zones. Farr Preliminary Injunction Decl., P10.d. There may be a "pocket" or "pool" of pure PCE, which continues to release PCE, beneath the site. See, e.g., Phillips Dep., 138:6-17. The PCE plume now occupies a substantial area of the Lincoln Center subsurface. See Plaintiff's Exhibits 52, 55. The plume is unstable: while its rate of movement is in dispute, it is undisputed that PCE, TCE and DCE have migrated vertically and laterally in the subsurface, and may continue to so migrate. Farr Preliminary Injunction Decl., P5.c.30 This movement presents a threat of further endangerment to the environment. Id. P5.d.
The dry cleaners contend that the reported cases that found "imminent and substantial endangerment" to the environment involved [23 ELR 20672] a threat that living organisms would be exposed to contaminants, or something more than "mere" groundwater contamination.31 The court is not persuaded. The statute speaks of endangerment to health or the environment. The term "environment" appears to include air, soil and water. See supra at 31; see also 42 U.S.C. § 9601(8) (CERCLA definition of "environment" includes water, land and air). Neither the statute nor the case law interposes an additional requirement that humans or other life forms be threatened.32
Furthermore, here, the contamination is not isolated. Contamination of an isolated region far from human or other life may not present the possibility of "imminent and substantial endangerment of the environment" within the meaning of RCRA. Lincoln Center, however, is located in a populated area. The beneficial uses of the water beneath Lincoln Center include domestic, municipal, agricultural and industrial supply. Plaintiff's Ex. 201 at II-1. Over time, the City of Stockton and San Joaquin County have chosen to locate municipal supply wells in the Lincoln Center area. Several County wells have already been closed at least in part as a result of the contamination. See Delucchi Decl., PP3-6. In addition, there are numerous private wells in the area, some of which draw from (contaminated) Zone B. It is unclear how many of these wells are now in use. However, it is clear that a substantial measure of Stockton groundwater has been removed from public use.
The extent of the threat of harm to human health is vigorously disputed by the parties. According to plaintiff's own expert, the water in City Well No. 11 will not exceed the federal MCL levels for PCE until at least 2007. This does not appear to establish a sufficient possibility of imminent and substantial endangerment to health to warrant injunctive relief. However, the possible health effects are relevant to the question of environmental endangerment, and provide further support for the court's finding that the conditions at Lincoln Center may present a substantial and imminent endangerment to the environment.
In sum, there is present harm to the environment which is both imminent and substantial. Certainly a substantial risk of endangerment may be presented.
The dry cleaners argue that injunctive relief is not warranted because they are no longer discharging PCE. RCRA, however, "authorizes the cleanup of a site, even a dormant one, if that action is necessary to abate a present threat to the public health or the environment." U.S. v. Price, 688 F.2d 204, 214 [12 ELR 21020] (3d Cir. 1982).33 The environment at Lincoln Center is presently threatened.
2. Hazardous Waste. Lincoln must show that the endangerment stems from the handling, storage, treatment, transportation or disposal of any solid or hazardous waste. 42 U.S.C. § 6972(a)(1)(B); Conservation Chemical,619 F. Supp. at 199. A solid waste is "hazardous" if it may
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903(5). The Environmental Protection Agency has determined that PCE and TCE are "hazardous wastes" under RCRA. See 40 C.F.R. § 261.31 and Appendix VII to 42 C.F.R. Part 261.34 Thus, hazardous wastes have created the endangerment at Lincoln Center.
At 40 C.F.R. § 261.31, the EPA lists PCE among a group of "spent halogenated solvents. 170 See 40 C.F.R. § 261.31(a) at F002.35 The dry cleaners assert that they used only "raw, virgin" PCE, rather than spent halogenated solvents, in their operations. However, "spent material" is defined in another regulation as "any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing." See 40 C.F.R. § 261.1(c)(1).36 Any PCE discharged by the dry cleaners fits this definition. See Plaintiff's Corrected Memorandum at 46, n.60. Furthermore, even if the PCE was not previously "hazardous," it became so when it was "discarded" by the dry cleaning defendants.37
3. Handling or Disposal. Finally, Lincoln must establish that the dry cleaners have contributed or are contributing to the handling, storage, treatment, transportation or disposal of the hazardous waste that created the endangerment. 42 U.S.C. § 6972(a)(1)(B); see Conservation Chemical, 619 F. Supp. at 200. The dry cleaners have both handled and disposed of hazardous wastes. "Handling" is not defined in RCRA. However, in ordinary usage, to "handle" something is "to deal with or have responsibility" for it. American Heritage Dictionary 592 (2d College ed. 1985). The dry cleaners were responsible for and dealt with PCE. See supra at 5.
The dry cleaners also disposed of PCE. RCRA defines "disposal" as
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. § 6903(3) (emphasis added). Lincoln has established by undisputed evidence that PCE or PCE-laden wastewater spilled or leaked from each dry cleaning facility into the soil and groundwater underneath Lincoln Center. See supra at 5-11.38
C. Liability and Injunctive Relief
Because Lincoln has established all elements of its RCRA claim, the dry cleaning defendants are liable under § 6972(a)(1)(B). Their liability is joint and several. See Conservation Chemical, 619 F. Supp. at 199. Section 6972 confers upon the court "authority to grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic wastes." Price, 688 F.2d at 214.39 The court may order the dry cleaners to "take such . . . action as may be necessary." 42 U.S.C. § 6972(a).
The parties dispute the legal standard governing Lincoln's request for RCRA injunctive relief. Lincoln contends that Congress foreclosed the court's traditional equitable discretion when it specifically authorized injunctive relief to "private attorneys general" in § 7002(a). According to the dry cleaners, however, the court must apply the long-standing preliminary injunction criteria.40
[23 ELR 20673]
Plaintiff has now withdrawn its preliminary injunction request, and the court must now decide whether permanent injunctive relief is warranted.41 "The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success." Amoco Production Co. v. Gambell, 480 U.S. 531, 107 S. Ct. 1396, 1404 n.12 [17 ELR 20574] (1987). However, "when actual success on the merits is shown, the inquiry is over and a party is entitled to relief as a matter of law irrespective of the amount of irreparable injury which may be shown." Multnomah Legal Services Workers Union v. Legal Services Corp., 936 F.2d 1546, 1553 (quoting Sierra Club v. Penfold, 857 F.2d 1307, 1318 n. 16 [19 ELR 20207] (9th Cir. 1988)); see also Western Systems, Inc. v. Ulloa, 958 F.2d 864, 872 (9th Cir. 1992). This language in the case law addressing permanent injunctions suggests that while some irreparable injury must be shown, the court need not balance hardships if plaintiff has established actual success on the merits. Even so, the court retains an obligation to arrive at a "nice adjustment and reconciliation" between the parties' competing claims. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 1803 [12 ELR 20538] (1982) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S. Ct. 587, 592 (1944)).
The dispute as to the role of equitable factors — particularly the balance of hardships — need not be resolved since the injunction is appropriately granted with or without consideration of these factors. First, in view of the considerable money already expended by Lincoln and the fact that injunctive relief would not be designed to alter the dry cleaners' current practices,42 the balance of hardships weighs heavily in Lincoln's favor. Without an injunction, Lincoln must undertake the investigation and monitoring with no participation from those who discharged the pollutants. Second, under the circumstances, a RCRA injunction requires of the dry cleaners the same sort of financial contribution as the court could award under CERCLA. It imposes little additional burden. The dry cleaners were the initial source of the contamination, and however the court ultimately apportions liability, it is clear that they will bear a substantial share.
The courtnow holds that injunctive relief requiring defendants to participate in monitoring and investigating the PCE in the groundwater is appropriate in the circumstances of this case.43 See U.S. v. Price, 688 F.2d 204, 213 [12 ELR 21020] (3d Cir. 1982) (defendant may be required to expend money in order to obey or perform the act mandated by the injunction). An injunction will determine the existence and extent of the endangerment through further investigation, monitoring and testing. This will prevent irreparable injury to the environment, regardless of whether such injury is viewed as a statutory or equitable requirement. Zone A groundwater is essentially unusable. Zone B is contaminated, and Zone C may now be or may become contaminated.
As a practical matter, in light of the present procedural posture of the case, it appears that the injunction will not be of great moment: the dry cleaners are also liable under CERCLA,44 and the injunction will only accelerate the timing of a portion of their financial contribution. This is not to say that a RCRA injunction may be used here or in any other case to circumvent CERCLA. Conversely, however, the availability of CERCLA does not establish an "adequate remedy at law" precluding RCRA injunctive relief. See U.S. v. Waste Industries, Inc., 734 F.2d 159, 168 [14 ELR 20461] (4th Cir. 1984).
A. Statutory Framework
The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., was enacted by Congress in 1980 to facilitate the cleanup of leaking hazardous waste disposal sites.45 See Ascon Properties, 866 F.2d at 1152. The statute has two primary purposes:
First, Congress intended to provide the federal government with the means to effectively control the spread of hazardous materials from inactive and abandoned waste disposal sites. Second, it intended to affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination.
Kaiser Aluminum & Chemical Corporation v. Catellus Development Corporation, 1992 WL 259374 at *1 [23 ELR 20020] (9th Cir. Oct. 8, 1992). Because CERCLA is a remedial statute designed to protect public health and the environment, its provisions must be construed liberally. Wilshire Westwood Associates v. Atlantic Richfield, 881 F.2d 801, 804 [19 ELR 21313] (9th Cir. 1989); Kaiser Aluminum, 1992 WL 259374 at *1.
The three cornerstones of the CERCLA scheme are federal cleanup authority, the "Superfund" and liability provisions. See generally U.S. v. Alcan Aluminum Corp., 964 F.2d 252, 258-59 [22 ELR 21124] (3d Cir. 1992). CERCLA § 104, 42 U.S.C. § 9604(a), authorizes the federal government to respond to a release or substantial threat of a release of hazardous substances into the environment by taking the necessary removal, remedial or other response measures. The "Superfund," 26 U.S.C. § 9507, provides money for federal response costs and compensation to injured parties.
The liability scheme is CERCLA's "bite." See Alcan Aluminum, 964 F.2d at 258. Under CERCLA § 107(a), 42 U.S.C. § 9607(a), the federal and state governments and private citizens may recover "response costs" for hazardous waste cleanup from those who contributed to the release of waste. Section 9607(a) liability is strict. 3550 Stevens Creek Associates v. Barclays Bank, 915 F.2d 1355, 1357 [21 ELR 20011] (9th Cir. 1990); see 42 U.S.C. § 9601(32). § 9607(a) imposes CERCLA liability where a plaintiff establishes the following four elements:
1) The waste disposal site is a "facility" within the meaning of 42 U.S.C. § 9601(9);
2) A "release" or "threatened release" of any "hazardous substance" from the facility has occurred;
3) Such "release" or "threatened release" has caused the plaintiff to incur response costs that are "consistent with the national contingency plan;" and
4) The defendant falls within one of four classes of persons subject to CERCLA's liability provisions.
Ascon Properties, 866 F.2d at 1152-53. The four classes of "responsible parties" include:
1) The owner and operator of a vessel or a facility;
2) Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
3) Any person who by contract, agreement, or otherwise 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, and
4) Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.
42 U.S.C. § 9607(a)(1)-(4).
B. CERCLA Elements
Lincoln asserts CERCLA claims for recovery of response costs, declaratory relief as to the dry cleaners' liability for incurred and future response costs, and contribution.46 Lincoln and the dry cleaners now seek summary judgment as to the first two claims. In order to succeed on these claims, Lincoln must show that the dry cleaners are "facilities"; "releases" or "threatened releases" of hazardous substances [23 ELR 20674] from these facilities have occurred; the releases or threatened releases have caused Lincoln to incur response costs that are "necessary" and "consistent with the national contingency plan";47 and the dry cleaners fall within one of the classes of persons subject to CERCLA liability. See supra at 22-23.
1. Facilities. A CERCLA "facility" is "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9)(B). "In order to show that an area is a 'facility,' the plaintiff need only show that a hazardous substance under CERCLA is placed there or has otherwise come to be located there." 3550 Stevens Creek Associates v. Barclays Bank, 915 F.2d 1355, 1360 n.10 [21 ELR 20011] (9th Cir. 1990) (quoting U.S. v. Metate Asbestos Corp., 584 F. Supp. 1143, 1148 [14 ELR 20433] (D. Ariz. 1984)). Here, Lincoln has established by uncontroverted evidence that a hazardous substance (PCE) has "come to be located" at the Norge Cleaners, Finest Care Cleaners and Village Cleaners shops. Thus, each of these sites is a "facility" within the meaning of CERCLA.
2. Releases of Hazardous Substances. Lincoln must show releases or threatened releases of a hazardous substance from the dry cleaning facilities. The EPA Administrator has designated PCE and TCE as "hazardous substances" under CERCLA. See 40 C.F.R. § 302.4. This designation is conclusive for purposes of the statute. 42 U.S.C. § 9601(14)(B).
Under CERCLA, a "release" is "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." 42 U.S.C. § 9601(22). Courts have given a broad reading to the terms "release" and "threatened release." Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 [20 ELR 20281] (5th Cir. 1989); Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 793 [19 ELR 21180] (D.N.J. 1989). The presence of hazardous substances in the soil, surface water, or groundwater of a site demonstrates a "release." U.S. v. Hardage, 761 F. Supp. 1501, 1510 [21 ELR 20706] (W.D. Okl. 1990). There is no quantitative, or threshold concentration, requirement for releases of hazardous substances. Alcan Aluminum, 964 F.2d at 257-59.
Here, under the liberal Hardage definition, PCE is present in the soil and groundwater under each of the three sites; thus, there has been a "release" at each site. Alternatively, if the court simply applies the plain language of the statute, it is undisputed that PCE was spilled, leaked or discharged from each site. See supra at 5-11. The more difficult question is whether these spills, leaks or discharges were "into the environment." See § 9601(22).
The dry cleaners contend that CERCLA only imposes liability on one who releases a hazardous substance directly into the environment. CERCLA defines the "environment" as
(A) the navigable waters, the waters of the contiguous zone, and the ocean waters . . . and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air.
42 U.S.C. § 9601(8). Lincoln has not established that PCE seeped through the facility foundations. It has shown only that PCE passed from the floor drains into the sewer pipes and then somehow leaked from these pipes. See Plaintiff's Ex. 8, Transmittal Letter and 3-1 (Phase I report finds that PCE appears to have leaked through joints in sewer line); see also Plaintiff's Ex. 36 and Nakano Dep., 307:2-6 (soil samples were taken from areas adjacent to floor drains and sewer lines). The sewer system was owned and operated by Lincoln and the County. Thus, the dry cleaning defendants maintain that they cannot be held liable for PCE "releases" because they discharged PCE into sewer lines for which others were responsible, but not directly into the "environment" (i.e., the [sic] ground water and land surface).
The court cannot agree. The statute does not on its face provide that a release into the environment must be "direct." Judicial imposition of this additional requirement would be inconsistent with the necessarily broad construction of "release." See supra at 41. The dry cleaners' theory would engraft onto § 107 an intent requirement or good faith exception, by which one who intended to release PCE into the drain pipes and sewers rather than the soil and groundwater may escape liability. CERCLA liability, however, is strict. See, e.g., 3550 Stevens Creek Associates v. Barclays Bank, 915 F.2d 1355, 1357 [21 ELR 20011] (9th Cir. 1990). And the statutory definition of "release" encompasses the abandonment or discarding of barrels, containers and other closed receptacles; these releases are no more "direct" than the releases at issue here. See 42 U.S.C. § 9601(22).
Furthermore, there is no authority in the case law for the proposition that a release into the soil or groundwater must be "direct."48 In fact, the courts, albeit on slightly different facts, have consistently rejected attempts to impose such a requirement. See Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 791 [19 ELR 21180] (D.N.J. 1989) (spilling of fluids onto floor of industrial plants constitutes "disposal");49 State of Vermont v. Staco, Inc., 684 F. Supp. 822, 832-33 [18 ELR 20589] (D. Vt. 1988), vacated in part, 1989 WL 225428 (D. Vt. 1989) (court states, in dictum, that "[m]igration of hazardous chemicals by drainage to publicly owned sewers from home plumbing systems, and the seepage and leaching from domestic septic systems that continues from earlier discharges, constitute 'release(s)' within the definition stated in section 9601(22)"); U.S. v. A & N Cleaners and Launderers, Inc., 788 F. Supp. 1317, 1324-26 (S.D.N.Y. 1992) (undisputed that a "release" occurred when defendant disposed of wastewater infused with PCE and TCE through the floor drain; however, the wastes apparently passed directly into defendant's "Dry Well," which was simply a hole in the ground); Westwood Pharmaceuticals v. National Fuel Gas Distribution Corp., 737 F. Supp. 1272, 1278-80 (W.D.N.Y. 1990), aff'd, 964 F.2d 85 [22 ELR 20813] (2d Cir. 1992) (depositing hazardous substances into underground pipes and structures constitutes "disposal" within the meaning of CERCLA, although defendant's liability apparently hinges on its abandonment of these "subsurface receptacles").50
3. Response Costs. Lincoln must also show that the releases of hazardous substances have caused it to incur response costs. 42 U.S.C. § 9607(a)(4)(B). Lincoln need not establish that any particular defendant's waste caused or contributed to the incurrence of response costs. Alcan Aluminum, 964 F.2d at 264-66; Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1387-9 [22 ELR 20614] (E.D. Cal. 1991).
"Response costs" include those costs incurred in "removal" or "remedial action." 42 U.S.C. § 9601(25). "Removal," in turn, means the cleanup or removal of released hazardous substances from the environment, as well as actions necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, and the disposal of removed material. 42 U.S.C. § 9601(23). "Remedial actions" are those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment. 42 U.S.C. § 9601(24).
The undisputed facts show that plaintiff has incurred over $3,000,000 in response costs. Smith Decl., P7. Lincoln has hired an environmental engineering firm, which has surveyed public and private wells and drilled groundwater monitoring wells near Lincoln Center. The firm has also taken and analyzed extensive samples from the wells and soil. Id. PP4, 6. Plaintiff has also hired two law firms to prosecute its claims. Id. P5.51
[23 ELR 20675]
4. Operator Liability. Finally, Lincoln must establish that each defendant falls within one of the four classes of persons liable under CERCLA. See 42 U.S.C. §§ 9607(a)(1)-(4). Lincoln contends that each dry cleaner is subject to "operator" liability as a "person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of." 42 U.S.C. § 9607(a)(2) (emphasis added).
A CERCLA "operator" is "any person . . . operating such facility." 42 U.S.C. § 9601(20)(A)(ii). "The circularity of this definition renders it useless." Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., 1992 WL 259374 at *2 [23 ELR 20020] (9th Cir. Oct. 8, 1992). The Ninth Circuit recently reaffirmed "the well-settled rule that 'operator' liability under section 9607(a)(2) only attaches if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment." Id. at *3.
It is undisputed that defendants Bennie Hein, Bonnie Crosby, A. A. Mederos, Monroe Hess, Wilbert Moser, Jack Alquist and Dwight Alquist used and stored cleaning solvents containing PCE at their facilities. See Plaintiff's Statement of Undisputed Facts, Nos. 37, 47, 58. They had authority to control PCE when it was "released." Thus, these defendants are "operators" within the meaning of CERCLA.52
The undisputed evidence establishes the dry cleaning defendants' CERCLA liability as a matter of law.53 Their liability is joint and several.54 Lincoln has shown that the PCE released from the three facilities has "commingled" in the subsurface. According to plaintiff's expert, "it is scientifically impossible to determine which portion of the groundwater beneath and downgradient from Lincoln Center has been contaminated with PCE by particular sources of PCE." Farr Decl., P10. The harm, therefore, is indivisible. The dry cleaners have not met their burden of establishing that the harm can be apportioned. Thus, they may be held jointly and severally liable for the entire harm.55
C. Federally Permitted Releases
Some of the dry cleaners finally assert that even if they would otherwise be liable for PCE releases, any such releases were "federally permitted" within the meaning of 42 U.S.C. § 9607(j).56 The dry cleaners would have the court find a large gap in the statutory scheme. CERCLA, however, is comprehensive, and the federally permitted release exception is quite narrow.
"'Federally permitted releases,' which are defined by reference to existing law, are not considered hazardous and are not therefore subject to the provisions of CERCLA." Joy v. The Louisiana Conference Association of Seventh-Day Adventists, 1992 WL 165670 at *4 (E.D. La. July 6, 1992). Under § 9607(j),
Recovery by any person . . . for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section [i.e., CERCLA § 107]. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance.
A defendant who claims exemption for the release of hazardous substances bears the burden of proving which releases are federally permitted and what portion of the damages are allocable to the federally permitted releases. United States v. Shell Oil Company, 1992 WL 144296 at *6 [22 ELR 20791] (C.D. Cal. Jan. 16, 1992).
CERCLA § 101(10) sets forth eleven different types of federally permitted releases. The dry cleaning defendants invoke § 9601(10)(J), which exempts from § 107 liability
the introduction of any pollutant into a publicly owned treatment works when such pollutant is specified in and in compliance with applicable pretreatment standards of section 1317(b) or (c) of Title 33 and enforceable requirements in a pretreatment program submitted by a State or municipality for Federal approval under section 1342 of Title 33.
No PCE releases for which the dry cleaners are otherwise liable were "federally permitted" within the meaning of § 9601(10)(J). First, this exemption applies only to the introduction of any pollutant into a publicly owned treatment works ("POTW"). PCE which was released into the soil and groundwater, however, never reached a POTW.57 The dry cleaners argue that the sewer pipes beneath Lincoln Center were part of a POTW. Thus, according to the dry cleaners, when they discharged PCE into the pipes, they were in fact "introducing" it into a publicly owned treatment works. This position finds apparent support in two EPA regulations. In regulations promulgated pursuant to the Clean Water Act and RCRA Subtitle C, EPA has defined a POTW as
any device or system used in the treatment . . . of municipal sewage or industrial wastes of a liquid nature which is owned by a "State" or "municipality" . . . This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.
40 C.F.R. §§ 122.2, 260.10.
These regulations, however, are either inapposite or uncertain. As Lincoln notes, the Clean Water Act governs pollutants in and emanating from POTW's, and does not protect groundwater or soil. A regulation intended to protect POTW's from contaminants provides no guidance on the question of liability for pollutants that never reach a POTW. Although the RCRA regulation cited above is consistent with defendants' theory, another RCRA regulation exempts from EPA's definition of "solid waste" "[a]ny mixture of domestic sewage and other wastes that pass through a sewer system to a publicly-owned treatment works." 40 C.F.R. § 261.4(a)(1)(ii) (emphasis added). Thus, the RCRA regulations sometimes distinguish between sewer pipes and POTW['s].58
Furthermore, CERCLA itself distinguishes between POTW['s] and sewers: the statute defines a "facility" as "any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works)." 42 U.S.C. § 9601(9)(A). Thus, when the dry cleaners discharged PCE into the Lincoln Center sewers, they did not introduce it into a POTW.
Second, even if the Lincoln Center sewer lines were POTW's, the dry cleaners' releases of PCE into these lines were not "in compliance with . . . enforceable requirements" in a local, federally approved pretreatment program. Before 1978, San Joaquin County had no federally approved pretreatment program; thus, any pre-1978 releases were not federally permitted. See 53 Fed. Reg. 27275 (1988) ("the absence of a categorical pretreatment standard or a local limit for a specific pollutant precludes coverage for releases of that pollutant under the federally permitted release exception").59 In 1978, the [23 ELR 20676] County enacted County Code § 5-6200, which requires that any person who discharges industrial waste into a public sewer must first obtain a wastewater discharge permit. No dry cleaning defendant, however, has ever obtained such a permit. Hence, post-1978 releases were also not federally permitted.60
The dry cleaners have failed to meet their burden of proving that any releases were federally permitted. They are therefore subject to CERCLA liability for all of their releases of hazardous substances.61
Lincoln asserts a nuisance per se claim against defendants Crosby, Hein, Murray, Estate of Dwight Alquist, Jack Alquist and Monroe Hess and public and private nuisance claims against all defendants.62 Lincoln now requests injunctive relief on these claims,63 while the dry cleaning defendants cross-move for summary judgment.
Under California law, a nuisance is
[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.
Cal. Civil Code § 3479. A public nuisance is
one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
Cal. Civil Code § 3480.
A private person may maintain a public nuisance action "if it is specially injurious to himself, but not otherwise." Cal. Civil Code § 3493. Injunctive relief is available:
An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance . . . and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor.
Cal. Civ. Proc. Code § 731. In fact, "injunction is the traditional method of abating a nuisance." People ex rel. Dept. of Public Works v. Adco Advertisers, 35 Cal. App. 3d 507, 511, 110 Cal. Rptr. 849, 852 (1973) (quoting L.A. Brick Co. v. City of Los Angeles, 60 Cal. App. 2d 478, 486 (1943)). Finally, nuisance liability is strict, since "[t]he injury to the property itself gives rise to the liability, irrespective of care or lack of care." Snow v. Marian Realty Co., 212 Cal. 622, 626 (1931).
Lincoln has established the elements of public nuisance. "The statutory definition of nuisance appears to be broad enough to encompass almost every conceivable type of interference with the enjoyment or use of land or property." Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125, 1136, 281 Cal. Rptr. 827, 833 [21 ELR 21429] (1991) (quoting Stoiber v. Honeychuck, 101 Cal. App. 2d 903, 919, 162 Cal. Rptr. 194 (1980)). Here, as Lincoln contends, "the release of man-made, carcinogenic chemical compounds in the soil and groundwater under Lincoln Center interferes with Lincoln's free use and comfortable enjoyment of its property." Plaintiff's Memorandum, 66:4-6. The nuisance affects the "considerable number of persons" required by Civil Code § 3480, since the contamination has forced San Joaquin County to close four water supply wells and now may threaten a City of Stockton well. The contamination is "specially injurious" to Lincoln Properties within the meaning of Civil Code § 3493. See Mangini, 281 Cal. Rptr. at 834-35 (costs incurred in testing to determine extent of hazardous waste contamination constitute "special injury"). Finally, the fact that the nuisance is located on plaintiff's property is no bar to recovery. Id. at 833-34.
Lincoln has also established nuisance per se. A legislatively declared public nuisance constitutes a nuisance per se. Adco Advertisers, 110 Cal. Rptr. at 852. San Joaquin County Code § 1-2004 provides that "[a]ny condition existing in violation of the code is a public nuisance." The dry cleaning defendants have therefore created a public nuisance by violating both the discharge permit requirement of County Code § 5-6200 and § 5-6400 of the County Code. The latter provision states in relevant part that "[n]o person shall discharge to a public sewer or storm drainage system wastes which cause, threaten to cause, or are capable of causing either alone or by interaction with other substances . . . [a] nuisance." A "nuisance" is defined as
[a]nything which is injurious to health . . . or an obstruction to the free use of property so as to interfere with the comfort or enjoyment of life or property or which affects at the same time an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.
County Code § 5-6000(x). The dry cleaning defendants discharged to a public sewer system PCE-laden wastes which cause or threaten to cause a nuisance within the meaning of §§ 5-6400 and 56000(x).64
The dry cleaners assert several defenses to the nuisance claims. First, they contend that they did not cause the contamination. See Portman, 147 Cal. App. 2d at 656 (jury was properly instructed that "in order to recover, plaintiff was required to prove by a preponderance of the evidence that [defendant] had created a nuisance, as defined by law, which proximately caused damage to plaintiff"). However, "not only is the party who maintains the nuisance liable but also the party or parties who create or assist in its creation responsible for the ensuing damages." Shurpin, 195 Cal. Rptr. at 741. Here, the dry cleaning defendants "created or assisted in the creation" of the nuisance by depositing PCE in their floor drains. Thus, their causation argument fails.
The dry cleaners next maintain that their discharges of PCE were "expressly permitted by law." Under Cal. Civil Code § 3482, "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." A "duly enacted municipal ordinance" is equivalent to a "statute" for purposes of § 3482. Wheeler v. Gregg, 90 Cal. App. 2d 348 (1949). County Code § 5-6409(a) and City of Stockton Code § 7-102.10.1 both permit the discharge of organic solvents into the public sewer system in amounts up to 50 ppm. Defendants contend that there is no evidence that they violated this standard, and proffer the declaration of their expert chemist, Dr. James Ambrose, who states that the concentrations of PCE in the wastewater discharged by the cleaners did not exceed 50 ppm. Ambrose Decl., P20. However, the dry cleaners, in violation of County Code § 5-6200, never obtained a discharge permit. In the absence of permits, the discharges were illegal regardless of their concentrations.
The dry cleaning defendants finally suggest that Lincoln consented to the discharge of wastewater containing PCE. The Mangini court held that
where, as here, an owner of property seeks damages for creation of a nuisance by a prior lessee, the lessee has a defense that his use of the property was lawful and was authorized by the lease; i.e., his use of the property was undertaken with the consent of the owner.
Mangini, 281 Cal. Rptr. at 835. According to the dry cleaners, because their leases required them to use the premises only for conducting dry [23 ELR 20677] cleaning operations, and because the dry cleaners were simply "carrying out their business in accordance with standard industry practices," Lincoln authorized the activity of which it now complains by signing the leases.
This argument is unpersuasive. The Mangini court specifically addressed a damage claim; in fact, the court also acknowledged that "we do not suggest that consent of an owner/lessor can impede the abatement of a public nuisance." Here, plaintiff requests both an abatement injunction and damages, but only the injunction request is presently before the court. Thus, Mangini's holding is inapposite. Furthermore, the lease provisions do not establish Lincoln's consent to the dry cleaners' disposal of PCE. In fact, the leases also required the dry cleaners to conduct their businesses "in accordance with law and valid regulations," which they apparently did not do.
The dry cleaning defendants are liable on Lincoln's nuisance claims. Their liability is joint and several since, as discussed supra, there is undisputed evidence that the harm caused by the PCE released from defendants' facilities is indivisible. Because Lincoln has established nuisance per se, it is entitled to injunctive relief without proof of irreparable harm and regardless of the availability of other remedies. Adco Advertisers, 35 Cal. App. 3d at 511-12, 110 Cal. Rptr. at 852.
VI. Jeanne Hess and James Murray
Defendants Jeanne Hess and James Murray move separately for summary judgment on Lincoln's CERCLA and RCRA claims on the grounds that neither is an "operator" within the meaning of these laws. James Murray provided only a financial contribution to Finest Care Cleaners. Murray signed the lease (along with Monroe Hess) and provided an unsecured loan of $20,000 to $30,000 to Hess for the operation of the business; when Hess repaid the loan, Murray's tenancy ended. Monroe Hess Dep., 47:5-49:19. It is undisputed that Murray never participated in the management or operation of Finest Care Cleaners and never made any decisions concerning the disposal, treatment, storage, or handling of hazardous substances at the facility. Plaintiff's Opposition, 2:19; Monroe Hess Sept. 23, 1992 Decl., P3. Murray was not intended to, and did not, have authority over any aspect of Finest Care's operations. Monroe Hess Nov. 5, 1992 Decl., P3.
On these facts, James Murray is not liable on either the CERCLA or RCRA claims. Plaintiff alleges only that Murray was an "operator" of Finest Care Cleaners. Corrected First Amended Complaint, PP78, 90. "Operator" liability under CERCLA attaches only "if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment." Catellus, 1992 WL 259374 at *3. Murray had no such authority.
RCRA does not define the term "operator." However, EPA regulations under RCRA provide that an operator is "the person responsible for the overall operation of a facility." Courts have generally imposed "operator" liability only on those who are "actively involved" in a facility's operations. See, e.g., U.S. v. Conservation Chemical Co. of Illinois, 733 F. Supp. 1215, 1221-22 [20 ELR 21036] (N.D. Ind. 1989). There is no evidence that James Murray was "responsible for" or "actively involved in" Finest Care's operations. Thus, he was not a facility "operator" under RCRA.
Like James Murray, Jeanne Hess is named only as an alleged "operator" of Finest Care Cleaners. Corrected First Amended Complaint, PP78, 90. Jeanne Hess is Monroe Hess' wife. Jeanne Hess never operated or managed the facility and never made any decisions concerning the disposal, treatment, storage or handling of hazardous substances. Monroe Hess Sept. 25, 1992 Decl., P2. However, at his deposition, Monroe Hess characterized his wife as a "co-owner" of Finest Care and stated that he and Jeanne had entered into an "oral partnership agreement" regarding the business. Monroe Hess Dep., 46:23-35, 51:1-19, 284:11-21. Even if thisis true, there is no evidence that Jeanne Hess had authority to control PCE or that she was actively involved in or responsible for Finest Care's operations. As a matter of law, she was not an "operator" within the meaning of either CERCLA or RCRA.
Lincoln's motion for summary judgment on its RCRA and CERCLA claims is granted. Lincoln is also entitled to injunctive relief on its RCRA and nuisance claims. The injunction will require the dry cleaning defendants to participate in the investigation, monitoring and testing of the groundwater and PCE pollution below Lincoln Center. The precise nature and scope of injunctive relief shall be determined, and the injunction shall issue, at a later date. The dry cleaning defendants' cross-motion for summary judgment is denied. James Murray and Jeanne Hess' separate summary judgment motion is granted.
The court will hold a status conference on February 18, 1993 at 3:00 p.m. in Courtroom 3. The parties shall file a joint status report addressing the scheduling of remaining Phase I issues no later than February 11, 1993.
IT IS SO ORDERED.
1. In the context of the pending motions, the "dry cleaners" or "dry cleaning defendants" are all defendants listed infra at n.19 except Norman and Donald Higgins.
2. Lincoln also moved for a preliminary injunction, for consolidation of trial on the merits of its permanent injunctive relief claims with hearing on its preliminary injunction motion, and for an order of reference to a special master. However, at the November 16, 1992 hearing, Lincoln withdrew its preliminary injunction motion, with the understanding that the court would address the propriety of injunctive relief in ruling on the summary judgment motions. This withdrawal moots the consolidation motion. As the court indicated at the hearing, the court will defer ruling on the request for appointment of a special master.
3. Defendants object that this is "a conclusion not a fact," but offer neither evidentiary objection nor contrary evidence to Farr's conclusion.
4. PCE was spilled onto the floor. Hein and Crosby's Response to Interrogatory Nos. 14, 15. The floor at the facility was concrete slab and was not sealed against permeation. Nakano Decl., P9.c(2); Hein Dep., 70:4-8. Soil samples collected under the foundation in 1987 contained PCE in concentrations as high as 63 parts per million (ppm); later, after the slab was removed, some samples taken showed that PCE was non-detectable. Plaintiff's Ex. 36 at 1; Plaintiff's Ex. 8 at Table 4-1. When the foundation was removed, one investigator detected a strong PCE odor in the soil underneath it. Nakano Decl., P9.c(2). Based on these facts, Robert Ryder, an engineer hired by Lincoln, concludes that PCE permeated the foundation. Ryder Decl., P9.d. However, in the absence of direct evidence of permeation, it is equally likely that the drain pipes and sewer lines were the source of the PCE in the soil, particularly given that the soil samples were taken near the drain pipes. See infra at 13. This factual dispute cannot be resolved on these motions.
5. Defendant Monroe Hess has testified that some water from the reclaimer was discharged into a bucket. Hess Dep., 191:14192:5.
6. Defendants have admitted to PCE spills onto the floor. The concrete slab floor was sealed so that there would not be concrete dust in the air, it is unclear whether this sealing also prevented PCE from permeating the concrete. Hess Dep., 90:17-92:11. Soil samples collected under the foundation contained PCE in concentrations ranging from less than 0.05 ppm to 0.36 ppm. Nakano Decl., P9.f(2)(b). Based on these concentrations, Farr concluded that PCE or PCE-laden [sic] wastewater entered the soil before entering the main trunk sewer line. Farr Preliminary Injunction Decl., P8.a(2). However, this conclusion does not necessarily mean that PCE passed directly through the foundation. See id. at P5.b (PCE was discharged to the drains and then passed into the soil before entering the main trunk lines).
7. It is undisputed that some PCE was spilled onto the floor. The concrete slab floor was not sealed against PCE permeation. Alquist Dep., 75:17-79:7. Soil samples collected from under Village Cleaners in June 1988 showed PCE concentrations ranging from 0.22 ppm to 8.4 ppm. Nakano Decl., P9.f(2)(b). Based on these concentrations, Farr concluded that PCE or PCE-laden [sic] wastewater was discharged into the soil before entering the main sewer trunk line. Farr Preliminary Injunction Decl., P8.a(3). This does not establish that PCE permeated the foundation. See supra at n.6.
8. An aquifer is a geologic formation that contains sufficient saturated permeable material to yield significant quantities of groundwater to wells and springs. Phillips Decl., P7.
9. The firm was acquired by Kennedy/Jenks Consultants in November 1990. Haines Preliminary Injunction Decl., P17.a.
10. Farr Preliminary Injunction Decl., P1.
11. The dry cleaners challenge the accuracy of Farr's model, relying on the declaration of their expert, Mark Liebe. However, Liebe's declaration addresses only Farr's predictive model for current and future PCE concentrations; it does not challenge the interpretations of 1990 lateral and vertical distribution set forth in PP10.c and 10.d of Farr's declaration. See Liebe Decl., PP13-25.
12. The experts agree that PCE is heavier than water.
13. Farr subsequently recognized that City Well No. 11 had been mislocated by about 300 feet, and adjusted her predictive model and results accordingly. See Farr Supplemental Decl., PP7-10.
14. These projections are based on Farr's second, fourth and sixth scenarios. The court does not consider Scenarios I, III and V, as these assume no degradation of PCE in groundwater even though Farr admits that PCE does decay over time. Farr Preliminary Injunction Decl., P10.e(2); Farr Dep. (August 25, 1992), 204:8-11.
15. The dry cleaning defendants deny the assertion, but proffer no evidence to rebut it.
16. According to Henry, the risk is "theoretical" due to a lack of data on the human health effects of PCE, "hypothetical" because scientists "do not fully understand how exposure to chemicals in drinking water occurs, and "upperbound" because the assumptions used by EPA overstate exposure and toxicity levels. Henry Decl., PP12-14.
17. See 40 C.F.R. § 300.430(e)(2)(i)(A)(2).
18. These include claims for nuisance per se, private nuisance, public nuisance, negligence per se, negligence, strict liability (for ultra-hazardous activity), trespass, breach of contract, waste, express indemnity, statutory indemnity (for hazardous substance), implied statutory contribution, implied contractual indemnity, equitable indemnity, comparative equitable indemnity and declaratory relief.
19. Norman Higgins, Donald Higgins, Wilbert Moser, Monroe Hess, James Murray, Jeanne Hess, Jack Alquist, Lincoln Village Cleaners, A. A. Mederos, Bennie Hein, Bonnie Crosby and Estate of Dwight Alquist.
20. Lincoln Village Maintenance District is a special utility district run by San Joaquin County.
21. The 1984 Amendments explicitly authorized civil enforcement actions predicated on past conduct; previously, the statute was ambiguous, and courts divided on the question of § 6973(a)'s applicability to past acts.
22. Conservation Chemical was a government enforcement action under § 6973; however, because this provision mirrors § 6972, the parties agree that the same elements must be established in a citizen suit.
23. The statute speaks of material "resulting from industrial, commercial mining. . . . agricultural . . . and . . . community" operations and activities. 42 U.S.C. § 6903(27).
24. 42 U.S.C. §§ 6921-6939b.
25. 42 U.S.C. §§ 6971-6979b.
26. One commenter suggests that the 1990 regulations were promulgated "in response" to PRASA and "rejected the PRASA holding." See Doris K. Nagel, in The Erosion of Federally Permitted Releases and the Domestic Sewage Exclusion, 10 Va. Envtl. L.J. 213 (1991). The court cannot agree. These regulations neither criticized PRASA's distinction between Subtitles C and G nor purported to affect Subtitle G in any way.
27. Waste Industries and most other cases that shed light on the meaning of the language in question were government enforcement actions brought under § 6973; however, as noted supra, § 6972 essentially mirrors that provision.
28. See 42 U.S.C. § 6903(3) (defining "disposal" to encompass waste discharges "into or on any land or water" so that the waste may be "emitted into the air or discharged into any waters, including ground waters").
29. The federal government has set Maximum Contaminant Levels ("MCL[']s") and Maximum Contaminant Level Goals ("MCLG[']s"), which establish permissible concentration levels for contaminants occurring in drinking water. See International Fabricare Institute v. U.S.E.P.A., 972 F.2d 384, 387-89 [22 ELR 21385] (D.C. Cir. 1992). The MCL for PCE is 5 parts per billion (ppb); for TCE, 5 ppb; and for DCE, 70 ppb. 40 C.F.R. § 141.61. The MCLG for PCE is 0 ppb; for TCE, 0 ppb; and for DCE, 70 ppb. 40 C.F.R. § 141.50. California has also established Maximum Contaminant Levels for these three pollutants; they are 5 ppb for PCE, 5 ppb for TCE and 6 ppb for DCE. 22 C.C.R. § 64444.5. These standards are more relevant to human health endangerment than environmental endangerment. However, they provide some guidance.
30. The rate of migration is in dispute. See Liebe Decl., PP13-25. However, it is undisputed that the contaminants move in the subsurface.
31. See, e.g., Defendants' Joint Supplemental Reply Brief at 4 n.6.
32. The conditions at Lincoln Center may be less extreme than those in some or even most reported cases in which RCRA injunctive relief issued. However, these cases do not establish minimum endangerment standards. See Plaintiff's Corrected Reply Memorandum, 51:25-52:2.
33. The statute authorizes a citizen suit against a past owner or operator who has contributed to past handling or disposal of hazardous waste which may now present an imminent and substantial endangerment. See 42 U.S.C. § 6972(a)(1)(B).
34. "Hazardous waste" is presumably defined more narrowly for purposes of Subtitle C than for purposes of Subtitles A and G. PRASA, 888 F.2d at 187. If PCE and TCE fall within the narrower category of Subtitle C hazardous wastes, they are certainly "hazardous" within the meaning of § 6903(5) and § 6972(a)(1)(B).
35. The regulation also lists as hazardous "all spent solvent mixtures/blends containing, before use, a total of ten percent or more (by volume)" of one of the listed solvents, as well as "still bottoms from the recovery of these spent solvents and spent solvent mixtures." 40 C.F.R. S 261.31(a) at F002.
36. This definition ostensibly applies only to 40 C.F.R. §§ 261.2 and 261.6; however, neither § 261.31 nor any other regulation of which the court is aware defines "spent."
37. See 40 C.F.R. § 261.33 (PCE is a hazardous waste "if and when [it was] discarded or intended to be discarded"); 40 C.F.R. § 261.2(a)(2)(i) ("discarded" material is material which has been "abandoned"); 40 C.F.R. § 261.2(b) (material is "abandoned" by being "disposed of").
38. The dry cleaners insist that the contamination and resulting endangerment were caused by leaks in the sewer system rather than by their handling or disposal of PCE. However, RCRA does not limit the cause of endangerment to a single occurrence or party. Furthermore, even if the dry cleaners were correct, they "contributed to" the ultimate disposal of PCE and are therefore liable under § 6972(a)(1)(B).
39. Price construed § 6973. § 6972 mirrors § 6973.
40. In this Circuit, in order to obtain a preliminary injunction, a party must demonstrate either (1) a likelihood of success on the merits and a possibility of irreparable injury, or (2) the existence of serious questions on the merits and a balance of hardships tipping in its favor. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 [22 ELR 21194] (9th Cir. 1992). These two legal standards are not distinct, but rather extremes of a single continuum. Id. Thus, the required degree of irreparable harm increases as the probability of success on the merits decreases. Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991). In cases where the public interest is involved, the court must also consider whether the public interest favors plaintiff. Fund for Animals, 962 F.2d at 1400. Furthermore, where the requested injunction would change rather than preserve the status quo, the movant's burden is greater. "Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party." Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1976) (emphasis added).
41. The precise nature and scope of any such relief is not presently before the court. Lincoln seeks an injunction compelling defendants to participate in the investigation and monitoring of the PCE pollution.
42. For instance, an injunction need not bar the dry cleaners from using PCE, since they have already stopped using it.
43. The nature and scope of the injunction will be determined at a later date.
44. See infra at 50.
45. CERCLA was amended in 1986 by the Superfund Amendments and Reauthorization Act ("SARA"), Pub. L. No. 99-499, 100 Stat. 1613.
46. Corrected First Amended Complaint, PP84-108.
47. The necessity and consistency with the national contingency plan of incurred response costs is not at issue in this Phase of the case. See April 2, 1992 Order, 2:8-9.
48. The dry cleaners cite only one case in support of their position. However, Cyker v. Four Seasons Hotel Limited, 1991 WL 1401 at *2 (D. Mass. 1991), states only that "environment" should not be interpreted to include "everything pertaining to the planet Earth" and that "CERCLA was not meant to provide a civil remedy whenever hazardous substances are found in a building's interior." The court has no quarrel with these statements; however, they shed no light on this case.
49. A "disposal" is not a "release;" however, Amland illustrates the futility of the dry cleaners' position, as the court rejected as argument that a building floor was not "land or water."
50. Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142 [21 ELR 21186] (D. Conn. 1990) and Kelley v. Thomas Solvent, 727 F. Supp. 1532 [20 ELR 20694] (W.D. Mich 1989), upon which plaintiff also relies, are simply inapposite; Vernon Village involved the "consumer product" exception (42 U.S.C. § 9601(9)), while Kelley addressed the scope of the third-party defense (42 U.S.C. § 9607(b)(3)).
51. There is a split in authority as to whether attorney's fees may be considered "response costs." See, e.g., Santa Fe Pacific Realty Corporation v. U.S., 780 F. Supp. 687 [22 ELR 20751] (E.D. Cal. 1991); but see Key Tronic Corp. v. United States, 766 F. Supp. 865 [21 ELR 21443] (E.D. Wash. 1991).
52. The liability of James Murray and Jeanne Hess as "operators" is addressed infra in the discussion of their separate motion for summary judgment.
53. An otherwise liable party may escape liability by pleading and proving one of CERCLA's three affirmative defenses. See 42 U.S.C. § 9607(b). Here, however, there is no evidence that any dry cleaner is protected by a § 9607(b) defense.
54. The statute itself does not provide for joint and several liability. Thus, "courts [must] determine, in accordance with traditional common law principles, whether such liability is proper under the circumstances." Alcan Aluminum, 964 F.2d at 268. Generally, where joint tortfeasors cause a single and indivisible harm for which there is no reasonable basis for division according to the contribution of each, each tortfeasor is subject to liability for the entire harm. Id. at 268-69 (citing Restatement (Second) of Torts, § 875 (1965)). Each defendant bears the burden of proving that the harm is capable of apportionment. Id. at 269 (citing Restatement (Second), § 433B(2)).
55. This determination of indivisibility does not affect any defendant's right to seek contribution from other defendants. See, e.g., Alcan Aluminum, 964 F.2d at 270 n.29; U.S. v. Stringfellow, 661 F. Supp. 1053, 1060 [17 ELR 21134] (C.D. Cal. 1987).
56. Jack Alquist, Lincoln Village Cleaners, Inc., Estate of Dwight Alquist ex rel CIGNA, Estate of Dwight Alquist ex rel Lumbermens Mutual Casualty Company and Wilbert Moser have pleaded the defense. The other dry cleaning defendants failed to plead it and thereby waived the defense. Fed. R. Civ. P. 8(c); see Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987).
57. It is undisputed that the Lincoln Center sewers ultimately led to the City of Stockton Main Treatment Works, which is a POTW.
58. Furthermore, 40 C.F.R. §§ 122.2 and 260.10 are at best ambiguous as to their applicability to privately owned sewer systems. (Here, the vast majority of apparently leaking sewer pipes were owned by Lincoln.) Both regulations define a POTW as "any device or system . . . which is owned by a "State" or "municipality." Contrary to the position of both Lincoln and the dry cleaners, the subsequent language to the effect that this definition includes sewers or pipes that convey [sic] wastewater to a POTW need not be read to mean that privately owned pipes or sewers that lead to a POTW are themselves POTW[']s. Instead, this language may simply modify the first sentence of the two regulations to clarify the inclusion of publicly owned sewers and pipes within the regulatory definition.
59. EPA's proposed interpretive rule, while not yet final, provides some guidance.
60. The dry cleaners assert that their failure to obtain permits was merely a "technical violation" since the County has not administered or enforced its wastewater discharge regulations. The court cannot accept this characterization. The County's pretreatment program required that the dry cleaners obtain permits, and by failing to obtain the permits, they failed to comply with the program.
61. Because the dry cleaners' federally permitted release argument is unavailing, the court need not reach Lincoln's contention that the dry cleaners' assertion of this defense is precluded by their failure to comply with the notification requirement of 42 U.S.C. § 9603(c). See U.S. v. Tyson, 1986 WL 9250 at *13 [17 ELR 20527] (E.D. Pa. 1986) (unnecessary to decide defendant waived statutory defenses by failing to comply with § 9603(c) because no valid defenses were asserted).
62. Corrected First Amended Complaint, PP109-149.
63. The procedural posture of Lincoln's nuisance claim is somewhat unclear. Lincoln initially moved for a preliminary injunction on this claim and for consolidation of the hearing on this motion with trial on the merits of its request for permanent injunctive relief. Lincoln then withdrew the preliminary injunction and consolidation motions at the court's suggestion, with the understanding that the court would address the propriety of permanent injunctive relief. To the extent that only the dry cleaners' summary judgment motion on the nuisance claim is now before the court, the court may, if appropriate, sua sponte grant summary judgment in Lincoln's favor in the absence of genuine material factual disputes. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982).
64. It appears that Lincoln has established nuisance per se by proving violations of Civil Code § 3479. See Portman v. Clementina Co., 147 Cal. App. 2d 651, 659 (1957); Shurpin v. Elmhirst, 148 Cal. App. 3d 94, 101, 195 Cal. Rptr. 737, 741 (1983).
23 ELR 20665 | Environmental Law Reporter | copyright © 1993 | All rights reserved