Fireman's Fund Insurance Co. v. City of Lodi

No. CIV. S 98-1489 FCD JFM (41 F. Supp. 2d 1100) (E.D. Cal. February 25, 1999)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not pre-empt a California city's comprehensive municipal environmental response and liability ordinance. An insurer challenged the constitutionality of the ordinance. The court first dismisses the insurer's claims against municipal officers, municipal attorneys, and a law firm working for the city because the claims are duplicative of the insurer's claims against the city. In addition, the court dismisses the remaining claims against the municipal officers, municipal attorneys, and the law firm because the defendants are entitled to qualified immunity as government officials performing discretionary duties. The court next holds that the insurer's claims are ripe for adjudication. The court also holds that the insurer has alleged a direct threat of injury sufficient to confer standing. The city's unconcealed plan to target insurers under the ordinance demonstrates the imminence of the threat. Further, the ordinance's specific provisions and their applicability to the insurer, the ordinance's recent enactment, the enforcement of the ordinance against parties whose status under the ordinance is identical to the insurer's, and indications that the ordinance will be enforced in the future are indicative that an actual controversy exists.

The court then holds that CERCLA does not preempt the field of state environmental regulation. CERCLA explicitly provides that it does not preempt any state from imposing additional liability or requirements with respect to the release of hazardous substances. The word "states" does not exclude municipalities, and CERCLA does not preclude states from explicitly or implicitly redelegating their authority to their political subdivisions. The court also holds that the ordinance and CERCLA do not conflict with each other because it is not physically impossible for the insurer to comply with the provisions of each. The court then abstains from ruling on whether the California Hazardous Substance Account Act (HSAA) preempts the ordinance. The state preemption question, which requires the interpretation of a local ordinance that enables the city to pay for hazardous waste remediation, is an area of serious local concern into which federal intrusion is undesirable. Further, if a state court determines that the ordinance is preempted by the HSAA, the ordinance would be void, and a federal court would not have to decide the insurer's federal Due Process, Equal Protection, and Contract Clause claims.

Counsel for Plaintiff
Terry J. Houlihan
McCutchen, Doyle, Brown & Enerson
Three Embarcadero Center, Ste. 1800, San Francisco CA 94111
(415) 393-2000

Counsel for Defendants
Adam Babich
Zevnik Horton Guibord McGovern Palmer & Fognani
77 W. Wacker Dr., Chicago IL 60601
(312) 977-2500

[29 ELR 21162]

Damrell, J.:

Memorandum and Order

In response to an ordinance adopted by the City of Lodi, California (the "City"), plaintiff Fireman's Fund Insurance Company ("Fireman's Fund") brings suit against the City; Mayor Jack Sieglock in his official capacity; Enforcement Officers Richard C. Prima, Jr., and Fran E. Forkas in their official capacities; City Attorney Randall A. Hays in his official and individual capacities; and Michael C. Donovan and Zevnik Horton Guibord & McGovern, LLP (collectively, the "Firm"), private attorneys acting as assistant city attorneys for Lodi, in their official and individual capacities.¹ Fireman's Fund alleges that the City's Comprehensive Municipal Environmental Response and Liability Ordinance (the "Ordinance") is preempted by federal and state law and violates the United States Constitution and the California State Constitution. Specifically, Fireman's Fund alleges that the Ordinance is preempted by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., and the California Hazardous Substance Account Act (HSAA), Cal. Health & Safety Code § 25300 et seq., and that the Ordinance violates Fireman's Fund's rights secured by the Due Process Clause of the United States Constitution, and the Equal Protection and Contract Clauses of the United States and California State Constitutions.

This matter comes before the court on Fireman's Funds' motion for partial summary judgment and permanent injunction and defendants' motions to dismiss.² The parties were heard at extended oral argument on December 4, 1998. Having reviewed the numerous filings and exhaustive arguments, the court finds that the individual defendants and the Firm are immune from suit, that CERCLA does not pre-empt the Ordinance, and that the court should abstain from consideration of whether the ordinance is preempted by the HSAA. Accordingly, Fireman's Fund's motion for partial summary judgment and permanent injunction is denied, the individual defendants', the Firm, and the first cause of action are dismissed, and the second through sixth causes of action are dismissed without prejudice.

Preliminary Rulings

At the December 4 hearing, the court took judicial notice of the remedial provisions of the municipal codes of San Francisco, Los Angeles, Chicago, and New York City; California Health and Safety Code sections; the imminent expiration of HSAA provisions; and the Order of the San Joaquin Superior Court. Fireman's Fund's response to the requests was noted.

The court also accepted the amici briefs filed by the American Insurance Association and Insurance Environmental Litigation Association. Responses to the briefs were noted.

Despite the parties' excessive use of proffers and corrections, the court accepted them. Fireman's Fund's protest was noted.

Standard

1. Summary Judgment

Summary judgment is appropriate if the record, read in the light most favorable to the non-moving party, demonstrates no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Material facts are those necessary to the proof or defense of a claim, and are determined by reference to the substantive law. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23, 106 S. Ct. 2548. Moreover, "[a] summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

2. Dismissal

A complaint will not be dismissed under Federal Rule of Civil Procedure 12(b)(6), "unless it appears beyond doubt that [a] plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Yamaguchi v. Department of Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (quoting Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

Background

1. Factual Background³

In April 1989 the City detected tetrachloroethene (PCE) in a water sample from a new water tank. Subsequent testing found PCE contamination in the groundwater and several City water wells. In March 1992 the Central Valley Regional Water Quality Control Board (RWQCB) issued a report identifying a cleaning business insured by Fireman's Fund as one potential source of PCE contaminated waste-water discharged into the City's sewer lines and suspected as the source of the soil and groundwater contamination.

In 1993 the California State Department of Toxic Substance Control (DTSC) began its investigation of the contamination. In 1994 DTSC began an administrative action against selected potentially responsible parties, including the City, to address the soil and ground-water contamination.

The City retained Zevnik Horton Guibord & McGovern, LLP, a private law firm, in or about January 1997. At that time, the City also [29 ELR 21163] began a series of requests to the regional and headquarter levels of the Environmental Protection Agency (EPA) seeking a delegation of information gathering authority under CERCLA. The EPA twice denied the request.

On April 16, 1997, the City adopted Ordinance No. 1647 declaring any unpermitted or unre gulated presence of a hazardous substance in the environment a nuisance. At a meeting on May 6, 1997, Lodi's City Council authorized the City Manager to execute a "Comprehensive Joint Cooperative Agreement" ("Agreement") with the DTSC concerning the investigation and abatement of hazardous substance contamination in and affecting the City. On August 6, 1997, the City Council adopted the Ordinance that gives rise to this action. The Ordinance, modeled on CERCLA and the HSAA, declares certain conditions, releases, and processes to be "public nuisances."

The City issued Notices of Endangerment, in accordance with the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(2)(A), to potentially responsible parties in June 1997. The notices stated that these potentially responsible parties (PRP) were jointly and severally liable for investigation and remediation costs and that the City intended to commence a civil or administrative action against them unless they settled the claim. Enclosed with the notice was a settlement form releasing the PRP from further liability if he or she would pay an amount equal to its insurance policy limits. If an insurer was unwilling to authorize a policy limits settlement, the PRP could enter into a stipulated settlement in which the City agreed not to execute any judgment that might be obtained on any asset "except the remaining insurance policies issued by the non-settling insurer."

The City entered a proposed settlement agreement with a party to whom it sent an Abatement Action Order. Following the settlement, the City filed a civil complaint and "Proposed Final Consent Decree, Final Order and Final Judgment" in the Eastern District of California seeking judgment in the amount of one-million dollars. The matter is pending.

The City has issued two "Information Gathering Demands" to insurers pursuant to the Ordinance. When their demands were refused, the City filed criminal misdemeanor complaints against the insurers seeking sanctions for their failureto respond. The insurers filed demurrers which were granted, and the cases were dismissed. The City then filed civil complaints against the insurers seeking mandatory and permanent injunctive relief and ordering the insurers to comply with the demands. These actions are pending.

2. Procedural Background

On August 6, 1998, Fireman's Fund filed its complaint alleging that the City's adoption of the Ordinance (1) violated the Supremacy Clause of the United States Constitution; (2) violated Article 11, Section 7 of the California State Constitution; (3) violated Fireman's Fund's procedural due process rights secured by the Fourteenth Amendment; (4) violated Fireman's Fund's substantive due process rights secured by the Fourteenth Amendment and Article 1, Section 7 of the California State Constitution; (5) impaired Fireman's Fund's right to contract secured by Article 1, Section 10, Clause 1 of the United States Constitution and Article 1, Section 9 of the State Constitution; and (6) denied Fireman's Fund equal protection under the Fourteenth Amendment and Article 1, Section 7 of the California State Constitution.

On August 24, 1998, Fireman's Fund moved for a preliminary injunction. On September 21, 1998, while the preliminary injunction motion was pending, defendants Doto, Stone, Till, Donovan, Babich, and the Firm moved to dismiss and to strike.⁴ Also on September 21, 1998, the City and its officers moved to dismiss the complaint.

On October 16, 1998, Fireman's Fund filed a motion for partial summary judgment and permanent injunction.

After extensive briefing by the parties in support of and opposition to the motions, the court held a hearing on December 4, 1998.

Analysis

1. Individual Defendants and the Firm

Fireman's Fund brings suit against defendants Sieglock, Prima, and Forkas in their official capacities and defendants Hays, Donovan, and the Firm in their official and individual capacities. Defendants argue that the official capacity suits are duplicative of the claims against the City and that they are immune from suit in their individual capacities.

A. Official Capacity Suits

A claim against a municipal officer in an official capacity is tantamount to a claim against the entity; it has the same effect as a suit directly against the city. See Hafer v. Melo, 502 U.S. 21, 24, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Thus, the claims against Sieglock, Prima, Forcas, Hays, Donovan, and the Firm in their official capacities are redundant.

B. Qualified Immunity

The remaining individual capacity claims against defendants Hays, Donovan, and the Firm must be dismissed because the defendants are entitled to qualified immunity. Government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory rights of which a reasonable person would have known."⁵ Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity is not merely an immunity to liability, but immunity from suit itself. See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).

In the Ninth Circuit, a two-part test determines the scope of qualified immunity for governmental officials. First, the court must determine whether the law governing the officials' conduct was clearly established at the time the officials acted. If the law was not clearly established, qualified immunity applies. If the law was clearly established, the court must determine whether reasonable officials would have believed that their actions were lawful. If the court so finds, the officials are entitled to qualified immunity. See Somers v. Thurman, 109 F.3d 614, 616-17 (9th Cir. 1997), cert. denied, __ U.S. __, 118 S. Ct. 143, 139 L. Ed. 2d 90 (1997); Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

For a federal right to be clearly established at the time of the defendant's alleged conduct:

the contours of the right must be sufficiently clear that a reasonable official would understand that what he's doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law that un-lawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (citations omitted). The threshold determination of whether the law governing the conduct at issue is clearly established is a question of law for the court. See Harlow, 457 U.S. at 818, 102 S. Ct. 2727. Fireman's Fund bears the burden of showing that the constitutional right at issue was clearly established at the time of defendants' conduct. See Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1989). A determination of reasonableness, although it may require consideration of factual issues, is appropriate for summary judgment if the facts are undisputed. See Act Up!/Portland v. Bagley, 988 F.2d at 872.

It is clearly established that defendants are not entitled to enforce unconstitutional statutes so as to deprive plaintiffs of their rights. It is not at all clear, however, that a reasonable attorney would have known that the Ordinance was unconstitutional. The complexity of the issues presented to this court and the amount of briefing submitted in support of and opposition to the motions belies the argument that a reasonable attorney would have recognized the unconstitutionality of the Ordinance. Defendants Hays, Donovan, and the Firm are entitled to qualified immunity.

Accordingly, defendants Sieglock, Prima, Forkas, Hays, Donovan, and the Firm are dismissed.

[29 ELR 21164]

2. Ripeness

Defendants argue that Fireman's Fund's claims are not yet ripe for adjudication and are properly dismissed. In determining whether plaintiff's claims are ripe, the court considers (1) whether the issues are fit for judicial decision, and (2) whether the parties will suffer hardship if the court declines to consider the issues. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S. Ct. 1713, 75 L. Ed. 2d 752 [13 ELR 20519] (1983).

In the instant case, the court finds the issues fit for judicial decision. The issues do not require further factual development: the content of the Ordinance is clear as are the City's intentions to enforce the Ordinance so as to maximize its recovery of the insurance assets of potentially responsible parties. As the Supreme Court has explained, a constitutional challenge to an economic loss attributable to legislation can be ripe even where significant steps remain before the transaction at issue actually takes place. See Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 143, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974).

3. Standing

Fireman's Fund bears the burden of establishing its standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 [22 ELR 20913] (1992). Defendants argue that Fireman's Fund cannot meet that burden because there has been no "injury-in-fact" to plaintiff's legally protected interest. See Sierra Club v. Morton, 405 U.S. 727, 740, 92 S. Ct. 1361, 31 L. Ed. 2d 636 [2 ELR 20192] (1972) (emphasizing that complaint must establish that plaintiff has "direct stake in the outcome" of lawsuit such that decision will resolve concrete dispute to show injury-in-fact).

Fireman's Fund has alleged a direct threat sufficient to confer standing. The City's unconcealed plan to target insurers like Fireman's Fund demonstrates the imminence of the threat. "The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the meaning of Article III." San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (citation omitted). However, "because it is clear to whom these provisions of the [Ordinance] would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all." Navegar, Inc. v. United States, 103 F.3d 994, 1000 (D.C. Cir. 1997). The City's intent to enforce the Ordinance against insurers is not speculative.

In this case four factors are indicative of an actual controversy despite the absence of a specific threat: (1) the highly specific provisions of the Ordinance and their applicability to Fireman's Fund; (2) the Ordinance's recent enactment (as opposed to a statute that "has lain moribund for years"); (3) the enforcement of the Ordinance against parties whose status under the law is identical to plaintiff's; and (4) indications that the Ordinance will be enforced in the future. See Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d 1338, 1342 (9th Cir. 1980). More than a general threat of enforcement faces plaintiff. Fireman's Fund has "suffered an 'injury-in-fact' to a legally protected interest that is both 'concrete and particularized' and 'actual and imminent' as opposed to 'conjectural' or 'hypothetical.'" San Diego County, 98 F.3d at 1126. "One does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough." Blanchette, 419 U.S. at 143, 95 S. Ct. 335 (citation omitted).

4. Federal Preemption

The Supremacy Clause of the Constitution, Art. VI, cl. 2, invalidates state laws that "interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution." Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604, 111 S. Ct. 2476, 115 L. Ed. 2d 532 [21 ELR 21127] (1991) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211, 6 L. Ed. 23 (1824)). Federal law preempts state law explicitly if the language of the federal statute reveals an express congressional intent to do so. Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). In the absence of such explicit statutory language, there are two ways of finding preemption by implication: "field preemption" and "conflict pre-emption." Field preemption occurs "where the federal scheme of regulation is so pervasive that Congress must have intended to leave no room for the States to supplement it." United States v. City and County of Denver, 100 F.3d 1509, 1512 [27 ELR 20418] (1996) (citing Barnett Bank, 517 U.S. at 31, 116 S. Ct. 1103).

Congress' intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," if "the Act of Congress . . . touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or if the goals "sought to be obtained" and the "obligations imposed" reveal a purpose to preclude state authority.

Mortier, 501 U.S. at 605, 111 S. Ct. 2476 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)). Conflict preemption occurs when Congress has not chosen to occupy a particular field, but federal and state law conflict. "Such a conflict arises when compliance with both federal and state regulations is a physical impossibility or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Mortier, 501 U.S. at 605, 111 S. Ct. 2476 (citations and quotation marks omitted).

Federal preemption of state law is not favored, especially in areas of law traditionally dominated by the individual states. When considering the preemptive effect of a federal statute, the court must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless it was the clear and manifest purpose of Congress." Rice, 331 U.S. at 230, 67 S. Ct. 1146; see English v. General Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990). For the purposes of this preemption analysis, the court analyzes the constitutionality of a local ordinance and a state-wide law in the same way. Mortier, 501 U.S. at 605, 111 S. Ct. 2476.

A. Explicit Preemption

In enacting CERCLA, Congress did not explicitly preempt all state environmental laws. See, e.g., Bedford Affiliates v. Sills, 156 F.3d 416, 426 [29 ELR 20229] (2d Cir. 1998); Witco Corp. v. Beekhuis, 38 F.3d 682, 687 [25 ELR 20007] (3d Cir. 1994); United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1455 [22 ELR 20405] (6th Cir. 1991); see also City and County of Denver, 100 F.3d at 1512 (implicitly finding that language of CERCLA reveals no express congressional intent to preempt state law). Fireman's Fund does not argue otherwise.

B. Field Preemption

Fireman's Fund argues that the Ordinance illegitimately seeks to assert the City's authority in an area completely occupied by CERCLA and California's HSAA. Plaintiff contends that CERCLA authorizes only states to impose additional requirements and that California has used its authority to implement the HSAA. According to Fireman's Fund, CERCLA granted no such authority to subdivisions of states or municipalities. It is undisputed that neither the EPA nor the HSAA delegated any powers to the City, and that the only power delegated to the City through its settlement with the DTSC was a limited power to gather information, not exercise the powers granted by the HSAA. According to Fireman's Fund, the court should draw the conclusion that the federal-state scheme created by CERCLA and HSAA occupies the field. The court disagrees.

CERCLA is not so comprehensive a scheme of regulation that it provides no room for supplementation by the states. See, e.g., Bedford Affiliates, 156 F.3d at 426-27; Witco Corp., 38 F.3d at 687; Akzo Coatings, 949 F.2d at 1455; see also City and County of Denver, 100 F.3d at 1512 (implicitly finding that CERCLA does not preempt the field). CERCLA states: "Nothing in this chapter shall be construed or inter-preted as preempting any State from imposing any additional liability or requirements with respect to release of hazardous substances within the State." 42 U.S.C. § 9614(a). Congress clearly intended that CERCLA would not occupy the field and anticipated state statutes and regulations imposing additional liability and requirements tailored to the needs of smaller jurisdictions. Fireman's Fund does not dispute that CERCLA alone does not occupy the field; Fireman's Fund argues that CERCLA plus California's HSAA equals occupation of the field, leaving the City no room in which to legislate.

[29 ELR 21165]

The crucial question in this field preemption analysis is whether the term "States" can be read broadly enough to encompass municipalities. Based on this court's reading of Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 111 S. Ct. 2476, 115 L. Ed. 2d 532 [21 ELR 21127] (1991), CERCLA's failure to specifically identify municipalities in § 9614(a) is not significant. As the Supreme Court stated in Mortier in construing the regulatory authority granted to "States" by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), "the exclusion of political subdivisions cannot be inferred from the express authorization to the 'State[s]' because political subdivisions are components of the very entity the statute empowers." Mortier, 501 U.S. at 608, 111 S. Ct. 2476. "Mere silence, in this context, cannot suffice to establish a 'clear and manifest purpose' to pre-empt local authority." Id. at 607, 111 S. Ct. 2476. Because "the term 'state' is not self-limiting since political subdivisions are merely subordinate components of the whole," in order to find field preemption, the court would have to find that states could not redelegate the authority granted to them under CERCLA to their political subdivisions "either specifically or by leaving undisturbed their existing statutes that would otherwise provide local government with ample authority to regulate." Id. at 612, 111 S. Ct. 2476. Moreover, the Supreme Court found:

Even if FIFRA's express grant of regulatory authority to the States could not be read as applying to municipalities, it would not follow that municipalities were left with no regulatory authority. Rather, it would mean that localities could not claim the regulatory authority explicitly conferred upon the States that might otherwise have been pre-empted through actual conflicts with federal law.

Id. Having found that the word "states" does not exclude municipalities, the court does not find that CERCLA precludes states from explicitly or implicitly redelegating their authority to their political subdivisions. Moreover, field preemption cannot be inferred from CERCLA. Section 9614(a) quoted above clearly anticipates that states (and municipalities) will adopt environmental regulations. This language allowing states (and municipalities) to adopt more stringent environmental regulations would be surplusage if Congress had intended to occupy the entire field of hazardous waste cleanup. The court finds the Supreme Court's reasoning in Mortier equally applicable to CERCLA.⁶

Arguing in favor of field preemption, Fireman's Fund cites three cases: Town of New Windsor v. Tesa Tuck, Inc., 919 F. Supp. 662 [26 ELR 21230] (S.D.N.Y. 1996); Borough of Sayreville v. Union Carbide Corp., 923 F. Supp. 671 [26 ELR 21389] (D.N.J. 1996); and Washington State Dep't of Transp. v. Washington Natural Gas Co., 59 F.3d 793 (9th Cir. 1995). These cases are not persuasive. Town of New Windsor holds that a municipality is not a "government plaintiff" for purposes of cost recovery actions brought pursuant to CERCLA. See 919 F. Supp. at 681-82 (holding that municipality is not "state" for purposes of § 107(a)(4)(A) of CERCLA, 42 U.S.C. § 9607(a)(4)(A)). However, that limited definition of "state" is not applicable in all instances. In Town of New Windsor, the district court acknowledged that "policy considerations, such as facilitating settlement," might justify treating a municipality as a "state" under CERCLA. Id. at 682 & n.22. In the instant case, prompt and efficient remediation of a hazardous waste site is the policy consideration justifying the expansive definition of "state."

In Borough of Sayreville, the district court held that a municipality is not an authorized representative of a state for purposes of bringing an action for natural resource damages recovery under CERCLA unless the municipality has been specifically appointed by the governor of the state. 923 F. Supp. at 680-81. Section 104(a)(4)(C) permits only "the President, or the authorized representative of any State" to bring suit on behalf of the public for damages to natural resources. 42 U.S.C. § 9607(f)(l). It is axiomatic that the "authorized representative of any State" must be appointed by the governor of that state, and that a municipality, by its own initiative, cannot become the authorized representative of its state. Borough of Sayreville does not support the notion that a municipality cannot be treated as a state for purposes of CERCLA's other provisions.

Finally, Fireman's Fund relies on the Ninth Circuit's decision in Washington State to support its contention that a municipality cannot be a state under CERCLA. In fact, Washington State holds only that state administrative departments and agencies are within CERCLA's definition of state. 59 F.3d at 800. The Ninth Circuit did not hold that municipalities fall outside the definition of a state. On the question of whether a municipality is a state for purposes of CERCLA, the court stated:

Some courts have concluded that the definition of "State" does not include political subdivisions such as municipalities. These cases are not relevant to the issue before us today. A municipality, a local government with authority over a limited area, is a different type of government unit than a state-wide agency that is part of the organized government of the state itself. Our discussion is limited to whether the definition of "State" encompasses the latter.

Id. at 800 n.5 (citation omitted).

CERCLA does not preempt the field. Congress clearly intended states to enact hazardous waste regulations, and that grant of authority to states encompasses municipalities.

C. Conflict Preemption

Fireman's Fund asserts that the Ordinance conflicts with CERCLA in six respects: (1) the apportionment of liability and allocation of costs; (2) the allowance of direct actions against insurers; (3) the presumption of consistency with federal clean-up procedures; (4) the recovery of natural resource damages; (5) the power to gather information and documents; and (6) the standard of proof for liability. As described above, conflict preemption occurs when "it is impossible to comply with both federal and state laws, or the state law stands as an obstacle to the accomplishment of Congress's objectives." City and County of Denver, 100 F.3d at 1512. Neither circumstance is present in this case.

A quintessential example of conflict preemption due to physical impossibility is found in United States v. City and County of Denver. Denverhad a local zoning ordinance that directly conflicted with a remedial order issued by the Environmental Protection Agency; the remedial order required on-site solidification of contaminated soils, but Denver's zoning ordinances prohibited the owner from maintaining hazardous waste in areas zoned for industrial use. The owner could not obey both the EPA's remedial order and the cease and desist order issued by Denver. This is conflict preemption, and the district court and Tenth Circuit Court of Appeal so found. Id. at 1512-13.

The circumstances in this case are not analogous. The Ordinance is not in actual conflict with CERCLA as to any of the six areas identified by Fireman's Fund. Placed side by side, the Ordinance and CERCLA differ but it is not physically impossible for Fireman's Fund to comply with the provisions of CERCLA and the provisions of the Ordinance. Moreover, no agency, federal or state, is enforcing CERCLA's provisions in this hazardous waste cleanup effort, nor has Fireman's Fund identified any provision of CERCLA with which it must comply pursuant to any order or request of any federal or state agency. Therefore, Fireman's Fund need not choose between compliance with CERCLA and compliance with the Ordinance.

Nor does the Ordinance stand as an obstacle to the prompt and efficient remediation of hazardous waste sites. To the contrary, the Ordinance seeks to efficiently collect funds with which the City can institute hazardous waste cleanup. The Ordinance differs from CERCLA in several respects but it is consistent with the overall objectives of CERCLA. Moreover, CERCLA anticipates the promulgation of non-federal hazardous waste statutes and regulations. Municipal regulations cannot be said to thwart Congress's intent to create uniform national hazardous waste legislation where no such congressional intent is apparent. The court does not find that the Ordinance is an obstacle to accomplishment of Congress's goal in enacting CERCLA.

5. State Preemption

Plaintiff asks this court to determine whether "the city ordinance is preempted by state law[,] . . . a sensitive and complex issue involving the distribution of power between the state and local governments." [29 ELR 21166] Cedar Shake and Shingle Bureau v. City of L.A., 997 F.2d 620, 622 (9th Cir. 1993). Preliminary to any decision on the merits, this court must consider the wisdom of exercising jurisdiction over the state preemption issue. Three factors must be present before abstention is allowed under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941):

(1) the complaint must involve a "sensitive area of social policy" that is best left to the states to address; (2) "a definitive ruling on the state issues by a state court could obviate the need for constitutional adjudication by the state court"; and (3) "the proper resolution of the potentially determinative state law issue is uncertain."

Cedar Shake and Shingle, 997 F.2d at 622 (citing Kollsman v. City of L.A., 737 F.2d 830, 833 (9th Cir. 1984)). All three factors are present in the instant case.

First, the preemption question requires the interpretation of a local ordinance which enables the City to pay for hazardous waste remediation it otherwise could not afford. This is an area of serious local concern about which the DTSC has expressed no opinion and into which federal intrusion is undesirable.

Second, the resolution of the preemption question would avert the need for this court to make a constitutional ruling. If a state court determines that the local ordinance is preempted by the HSAA, the ordinance would be void, and a federal court would not have to decide Fireman's Fund's Due Process, Equal Protection, and Contract Clause claims.

Third, the resolution of the preemption question is unclear. Article XI, section 7 of the California State Constitution provides that municipalities may make and enforce ordinances "not in conflict with general laws." An ordinance in conflict with general laws is void.

Conflicts exist if the ordinance duplicates, contracts, or enters an area fully occupied by general law, either expressly or by legislative implication. If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject [was] otherwise one properly characterized as "a municipal affair."

Cedar Shake and Shingle, 997 F.2d at 623 (quoting Cohen v. Board of Supervisors, 40 Cal. 3d 277, 219 Cal. Rptr. 467, 474, 707 P.2d 840 (1985) (citations omitted)). The California Supreme Court has determined that the HSAA does not preempt local zoning ordinances forcing hazardous waste disposal facilities to remove waste from areas designated by land use permits. IT Corp. v. Solano County Bd. of Supervisors, 1 Cal. 4th 81, 2 Cal. Rptr. 2d 513, 820 P.2d 1023 (1991) rev'g 272 Cal. Rptr. 574 (Cal. Ct. App. 1990). However, California courts have not decided whether local ordinances governing the remediation of hazardous waste sites duplicate and/or contradict the HSAA. Such a definitive ruling on this sensitive issue by a state court could obviate the need for this court to rule on the constitutional claims. However, the California courts have not spoken definitely in this matter.

Accordingly, this court abstains from ruling on whether the Ordinance is preempted by the HSAA.

9. [sic] The City's December 23, 1998 Letter

At the December 4 hearing, the court asked plaintiff's counsel if the City could be a potentially responsible party (PRP) under CERCLA. Plaintiff's counsel answered affirmatively, but unable to cite a case in support of his answer, he agreed to promptly file a letter containing the appropriate citations. The court received counsel's two-page letter on December 14, 1998. The letter lists citations for five cases followed by brief descriptions of the propositions for which they are cited.

On December 23, 1998, the City filed a four-page response and attached a copy of a note from the Stanford Environmental Law Journal. The court neither solicited nor approved the filing of the City's response. Local Rule 78-230 makes no provision for the filing of such documents. It is improper. Fireman's Fund moves the court to strike the City's letter filed December 23, 1998. The motion to strike is granted.⁷

Conclusion

1. Plaintiff's motion for partial summary judgment and for permanent injunction is DENIED.

2. The individual defendants and the Firm are DISMISSED.

3. The first cause of action is DISMISSED as to Defendant City of Lodi.

4. The court abstains from consideration of plaintiff's second through sixth causes of action, and they are DISMISSED WITHOUT PREJUDICE.

5. Defendant City of Lodi's letter filed December 23, 1998, is STRICKEN.

The Clerk of the Court is directed to close this file.

IT IS SO ORDERED.

1. Defendants Adam L. Babich, Bret A Stone. Steven H Doto. and John R Till were dismissed without prejudice by stipulation of the parties. See Stip. & Order filed 9/28/98.

2. Plaintiff filed a motion for preliminary injunction on August 24, 1998. Plaintiff's motion for partial summary judgment and permanent injunction supercedes the motion for preliminary injunction.

3. The Factual Background is drawn from plaintiff's Complaint. PP10-41.

4. Defendants Doto. Till, Stone, and Babich were dismissed by stipulation of the parties. See Order dated 9/21/98.

5. In the instant action, defendant Hays is the City Attorney; defendants Donovan and the Firm were retained by the City and made assistant city attorneys. As retained counsel. Donovan and the Firm may assert qualified immunity to the same extent as any city official. See Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997), cert. denied, __ U.S. __. 118 S. Ct. 1560, 140 L. Ed. 2d 792 (1998) ("The rationales for qualified immunity apply to [private] lawyers and their firm in about the same way they apply to [the government attorney]").

6. In City and County of Denver, 100 F.3d at 1513, the Tenth Circuit declined to apply Mortier when to do so would impede CERCLA's objective of promoting prompt and efficient remediation of hazardous waste sites. As discussed below, application of Mortier in the instant case would not impede CERCLA's overall objective. The Tenth Circuit's reasoning for refusing to apply Mortier to CERCLA does not hold in this case.

7. Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs L.R. 78-230(h).