California Dept. of Toxic Substances v. Alco Pac.

308 F.Supp.2d 1124

State of CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff, v. ALCO PACIFIC, INC., et al., Defendants And Related Counterclaims.

No. CV 01-9294 SJO.

United States District Court, C.D. California.

March 4, 2004.

Bill Lockyer, Attorney General of the State of California, Theodora Berger, Senior Assistant Attorney General, Donald A. Robinson, Supervising Deputy Attorney General, Edward H. Ochoa, Laurie R. Pearlman, Deputy Attorneys General, California Department of Justice, San Diego, CA, for Plaintiff.

Caren J. Dawson, Charles H. Pomeroy, IV, Michael J. Stiles, McKenna Long & Aldridge, Los Angeles, CA, Bruce Sperling, Sperling & Slater, Chicago, IL, David R. Gabor, McDermott Will & Emery, Los Angeles, CA, Eugene J. Frett, Sperling and Slater, Mark A. Bilut, Steven P. Handler, McDermott Will Emery, Chicago, IL, Terrence Mann, McDermott Will & Emery, Los Angeles, CA, Todd R. Wiener, McDermott Will Emery, Chicago, IL, Aaron P. Avila, James M. Schurz, Lauren M. Michals, Michele B. Corash, Morrison & Foerster, San Francisco, CA, Allan E. Ceran, Rodi Pollock Pettker Galbraith & Cahill, Los Angeles, CA, Coralie Kupfer, Kupfer Law & Mediation, Pasadena, CA, Robert Allen Yahiro, Rodi Pollock Pettker Galbraith & Cahill, Colin Lennard, Patricia Jean Chen, Fulbright & Jaworski, Los Angeles, CA, Lisa Schwartz Tudzin, Walter A. Stringfellow, Stringfellow & Associates, Brandon J. Roker, Chris M. Amantea, McDermott Will & Emery, Los Angeles, CA, A Steven Dotan, Gary A. Hamblet, Rebecca S. Glos, Breidenbach Huchting & Hamblet, Los Angeles, CA, for Defendants.

ORDER RE MOTION FOR SUMMARY JUDGMENT

OTERO, District Judge.

This is a cost recovery action brought by the State of California, Department of Toxic Substances Control ("DISC" or "the state"), pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). (Order of March 5, 2003.) The state seeks reimbursement of costs incurred cleaning the site of a former lead processing facility in Carson, California, as well as a declaration that it is entitled to recoup any costs it may incur in the future for clean-up of the same facility. (Id.) Defendants¹ are moving for summary judgment on the grounds that the state filed its cost recovery suit too late — past the three year statute of limitations contained in section 113(g)(2)(A) of CERCLA, 42 U.S.C. § 9613(g)(2)(A).

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. Accordingly, the matter was taken off calendar and placed under submission. Having thoroughly considered the points of law, facts, evidence and legal arguments submitted by counsel for all parties involved, the Court hereby DENIES the moving parties' motion for summary judgment.

I. BACKGROUND

The moving parties sent material to the Alco Pacific Site (the "Site" or "Alco Pacific Site") while the Site was in operation. The Site is a one-acre parcel of land located in Carson, California. Defendants Alco Pacific and Morris P. Kirk (collectively "Alco Pacific") owned and operated the Site from approximately 1950 to 1990. The material sent to the Site by Defendants included lead ingots, cuttings, dross and slag. These materials purportedly contributed to contamination at the Site.

In 1993, DTSC informed the owner of the Alco Pacific Site that it would begin "a removal action," meaning the state intended to remove contaminated materials from the Site. (See Plaintiff's Statement of Genuine Issues in Opposition, hereinafter "PSGI" at ¶ 9.) The state filed suit on October 29, 2001. Between 1993 and October 29, 2001, DTSC performed various activities related to the clean-up of the Site. From November 1993 to May of 1994, for example. DTSC engaged in activities related to the physical removal of contaminated waste at the Site. (Opp. at pp. 4-5; Landis Decl., Ex. 22, p. 604; and Amir Dec., ¶ 9.) More recently, between May and November 1998, contractors performed various activities on the Site including the stabilization of the Site for emissions control, air monitoring during removal activities, removal and disposal of large surface debris, disposal of small containers and drums, and demolishing lead-processing equipment and facility structures on the Site. (Amir Decl., ¶ 19.)

The dispute between the parties can be easily summarized. The moving parties contend that the three year statute of limitations began to run after the state completed the physical removal of hazardous waste and the above ground structures on the Site. (See P. & A., at p. 2 n. 2, 4-5 & 11-19.) Defendants make a distinction between "removal actions" and "remedial actions."² (See e.g. id. at p. 8.) Defendants suggest that more recent activities are remedial in nature. The state, on the other hand, argues that the removal process cannot be separated into discreet phases and that removal activities have been on-going. (See e.g. Opp. at pp. 12-13.) The state claims that removal is still not complete.³ As a result, according to the state, the three year statute of limitations never expired because the three year period begins only when removal is complete. (Id.)

The question presented is whether the sequence of activities on the Site related to the clean-up of hazardous waste is best characterized as a single removal action; or series of separate activities divisible into discreet phases, with the completion of each phase triggering the start of the three-year statute of limitations on cost-recovery actions.

A. Undisputed Facts⁴

i. Contamination at the Site

Alco Pacific processed and reprocessed lead on the Site from approximately 1950 through 1990. (PSGI, ¶ 3.) DTSC's interest in the Site dates to January 1993. (Amir Decl., ¶ 4.) In March of 1993, DTSC conducted soil sampling and the samples indicated "the presence of total lead well in excess of State of California screening levels." (Id. at ¶ 5.) In May of 1993 DTSC issued an "Imminent and Substantial Endangerment Determination because of the release and threatened release of hazardous substances [on the Site]". (Id. at ¶ 6; Landis Decl., Ex. 8, "Determination.") In addition to the lead, which was the primary concern, DTSC also found arsenic, copper and other metals. (Landis Decl., Ex. 8 at p. 2 II.24-26.) The surface contamination included a lead-contaminated waste pile which contained approximately 1,100 cubic yards of shredded polypropylene battery chips. (Id. at p. 2; and Amir Decl., ¶ 6.) There was also a large pile of lead contaminated foundry sand. (Id.) In addition to the waste piles, 39 to 46 drums of hazardous waste were removed from the Site. (Landis Decl., Ex. 7, p. 193, Ex. 11, p. 10; Ex. 12 & Ex. 13.) The drums contained slag, resins, catalysts, recyclable lead, rainwater/rinsate, and debris. (Id.) There was also a separate set of 52 drums containing radioactive waste on the Site. (Landis Decl. Ex. 7, p. 193.) Aside from the drums and waste piles, the structures on the Site as well as the soil on the Site was later found to be contaminated with hazardous waste. (Landis Decl. Ex. 7, p. 248; and Ex. 42, p. 761.)

ii. Sequence of Events

On June 04, 1993, DTSC issued the owner of the Site, Morris P. Kirk, a letter stating DTSC "assessed the Alco Pacific Site and ... determined that removal of hazardous waste will be necessary." (Landis Decl. Ex. 14.) DTSC informed Mr. Kirk that it would initiate "a removal action." (Id.) DTSC retained OHM Remediation Services Corporation ("OHM") to clean up the Site. (Amir Decl., ¶ 6 & 8.)

In November of 1993, approximately 1,100 cubic yards of contaminated polypropylene, and 110 cubic yards of contaminated foundry sand were removed from the Site. (Id.) "After the piles of waste were removed, a section of exposed soil was uncovered" at the Site. (Id. at ¶ 9; and Landis Decl., at p. 604.) The soil was graded and a chip seal cap was installed to prevent direct contact, or surface runoff, of contaminated soil. (Id.) That left a considerable amount of work left to be done on Site, including the removal of 52 drums of radioactive mixed waste. (Landis Decl., Ex. 22 at p. 604.) In March of 1994, 39 drums of non-radioactive waste were removed from the Site. (Landis Decl., Ex. 13, p. 463.) DTSC installed a fence on the Site in May of 1994. (Id.) On November 8, 1994 OHM issued a report entitled "Report of Completion of Interim Remedial Measure/Removal Action." (Id. at pp. 603-05.) As the title suggests, the report described the activities OHM performed on the Site. (Id.)

In August of 1995, DTSC issued an Imminent and Substantial Endangerment Determination and Remedial Action Order." (Landis Decl. Ex. 30.) The Order named Co-Defendant J.L. Shepherd and Assoc. ("J.L. Shepherd") as a responsible party. (Id.) DTSC ordered J.L. Shepherd to remove 52 drums of mixed radioactive waste from the Site. (Id.) According to the EPA, the radioactive waste was stored at the facility from 1988 to 1997. (Landis Decl. Ex. 42, p. 754 ¶ 9.) DTSC claims the radioactive waste was caused by a shipment of old density gauges from Defendant J.L. Shepherd. (See id.; and Amir Decl. ¶ 11.) J.L. Shepherd sent the old density gauges to the Site for Alco Pacific to recycle. (Id.) DTSC maintains that at least one gauge contained Cesium-137. (Id.) In July of 1997, under DTSC supervision, the drums containing radioactive waste were shipped to an authorized TSD facility for final disposal. (Landis Decl. Ex. 42, p. 754 ¶ 9.) According to Defendants, the removal of the radioactive waste constitutes a second and entirely separate removal action. (See Defendants' Statement of Fact, (hereinafter "DSF") ¶ 20.)

Before the drums were removed, DTSC conducted a limited surface investigation involving the collection of samples from the Site in June of 1997. (Amir Decl., ¶ 12.) The results indicated relatively high concentrations of lead. (Id.) Because of the hazard posed by...