City Of Fresno v. U.S.A

709 F.Supp.2d 888

CITY OF FRESNO, Plaintiff,v.UNITED STATES of America, et al., Defendants.

No. CV-F-06-1559-OWW-TAG.

United States District Court E.D. California.

April 22, 2010.

Opinion Denying Reconsideration June 30, 2010.

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Jessica E. Yates, PHV, Snell and Wilmer L.L.P., Denver, CO, Lisa A. Decker, Jeffrey L. Willis, Snell & Wilmer LLP, Tucson, AZ, for Plaintiff.

Francis Malcolm Goldsberry, II, Goldsberry Freeman and Guzman, LLP, Sylvia Ann Quast, United States Attorney's Office, Sacramento, CA, Charles Scott Spear, Govt., U.S. DOJ, ENRD, Environmental Defense Section, Kim Noelle Smaczniak, Govt., United States Department of Justice, Paul Cirino, Environmental Defense Section, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM DECISION RE: DEFENDANT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS OR FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF'S RCRA CLAIM; MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AS TO PLAINTIFF'S HSAA CLAIM (Docs. 142 & 143).

OLIVER W. WANGER, District Judge.

I. INTRODUCTION.

This is a dispute over environmental remediation between Plaintiff City of Fresno (the “City”) and Defendants the Boeing Company (“Boeing”), the United States Army Corps of Engineers, and the National Guard Bureau (collectively, the “United States”). The dispute concerns the environmental remediation of Old Hammer Field (“OHF”) in Northeast Fresno, a site presently occupied by the Fresno-Yosemite International Airport. This site was used by the United States as an Army Air base during World War II. In 1946, the United States transferred the property to Plaintiff, which has since owned and controlled it. Boeing's predecessor, North American Aviation, was one of Plaintiff's tenants of the property in the 1950s.

The City of Fresno has sued the United States and Boeing in a Second Amended Complaint (“SAC”) under CERCLA, RCRA, HSAA, as well as various state law theories. Plaintiff alleges that it “has shouldered, and continues to shoulder, a disproportionate share of the past, present and ongoing costs associated with the investigation and clean up of the OHF property, as well as off-site areas affected by Defendants' polluting activities.” (SAC ¶ 4.) Plaintiff requests a “declaration of responsibility and payment from Defendants for their fair share of all past, present and future responses costs [sic] incurred in response to Defendants' release of hazardous substances, wastes, materials and pollutants.” ( Id. ¶ 6.) Plaintiff also seeks monetary and injunctive relief.¹

Before the court for decision are two motions brought by Defendant United States: (1) for partial judgment on the pleadings or partial summary judgment as to Plaintiff's fourth claim under the RCRA; and (2) for partial judgment on the pleadings as to Plaintiff's third claim under the HSAA.

Defendant's RCRA motion challenges subject matter jurisdiction over this claim under § 113(h) of CERCLA. Defendant also argues that the claim is moot because the activities Plaintiff seeks to enjoin are already underway, under the doctrine of primary jurisdiction, and because there is no imminent and substantial endangerment at OHF as required under Plaintiff's RCRA claim. The HSAA claim is allegedly infirm because the United States has not unequivocally waived its sovereign immunity.

These motions were originally filed on April 23, 2007 and renoticed on August 20, 2009. Although the arguments in the original motions and renewed motions are largely the same, there is one important distinction: Plaintiff now alleges that 1, 2, 3-trichloropropane (“TCP”) has leached into the City's water supply, allegedly from the federal facilities located on or near OHF. The alleged presence of TCP-and its effect on the current remediation plan-drives the current dispute.

II. FACTUAL/PROCEDURAL BACKGROUND.

This case involves the cost, scope, and progress of environmental remediation activities conducted by Plaintiff City of Fresno, Boeing, and the United States at Old Hammer Field (“OHF”), a site presently occupied by the Fresno-Yosemite International Airport. This site was used as an Army Air base during the World War II years.² Boeing's predecessor, North American Aviation (“NAA”), was one of Plaintiff's tenants of the property in the 1950s.

The State of California, through its Department of Toxic Substances Control (“DTSC”) and the Regional Water Quality Control Board (“RWQCB”) (“State Agencies”) has oversight over the cleanup. The parties work together as the Old Hammer Field Steering Committee and have entered into multiple agreements since 1993, including a 1993 Cost-Sharing Agreement containing an interim allocation of costs and specification of remedial tasks to be performed.³ On October 4, 1994, Plaintiff, the United States, and the State Agencies entered into a Potentially Responsible Party Agreement for Old Hammer Field (“Cooperative Agreement”) governing the performance of the investigation and response actions at the site. On the same date, DTSC issued an Imminent or Substantial Endangerment Order and Remedial Action Order for OHF to Rockwell International, a successor to NAA and one of Boeing's predecessors.

In May 2004, the State Agencies approved the Final Remedial Action Plan (“RAP”) for OHF, which was a result of the Cooperative Agreement process. The RAP identified two primary contaminants of concern. First, a chlorinated volatile organic compound (“VOC”) known as trichloroethene (“TCE”), which has been used as a degreaser and industrial solvent for many industrial activities. The TCE plume extends almost 12,000 feet long, up to 4,000 feet wide at points, and up to 300 feet deep at points. It is suspected to have originated from Area 1. Second, tetrachloroethene (“PCE”), another industrial solvent, is contained within the larger TCE plume. The RAP has five principal components: (1) the Water Supply Contingency Plan; (2) the operation and treatment of water from Well 70; (3) the treatment of the “source area”; (4) installation of wells to prevent downgradient migration of contaminants; and (5) the operation and maintenance of the system.⁴

None of the parties is satisfied with the interim allocation of money each has paid over the years under the Cost-Sharing Agreement. Each believes it is entitled to reimbursement from the other parties. Nonetheless, until August 2006, the cleanup had continued without interruption with funding from the parties identified in a series of amendments to the original Cost-Sharing Agreement. In early 2006, disputes about funding arose and while alternative proposals were discussed, the parties were unable to agree on the allocation of funds. With funding exhausted, in August 2006 the parties notified the State Agencies that the remediation work at OHF would stop because of funding disagreements.

In September 2006, DTSC determined Plaintiff and the United States were non-compliant with the Cooperative Agreement and that Boeing was non-compliant with the DTSC's October 1994 Order. On October 20, 2006, pursuant to the California Water Code, the RWQCB issued an order to all of the parties to comply with a groundwater monitoring and discharging program. On October 31, 2006, pursuant to the California Health and Safety Code, DTSC issued an Imminent or Substantial Endangerment Determination and Order and Remedial Action Order to all the parties to conduct various response actions in accordance with a specific timeline. The DTSC Order required all parties, unilaterally, jointly, and severally, to immediately ensure that all required activities under the OHF RAP moved forward in accordance with the enforceable schedule. In December 2006 the parties reached an agreement to fund the activities required by the State Agencies in their October 2006 orders in the form of Amendment 8 to the Cost-Sharing Agreement.

On November 2, 2006, Plaintiff filed this action seeking payment for response costs it has incurred in relation to the cleanup at OHF of contaminants released by Defendants. The City sought a declaration of responsibility for past, present and future response costs incurred at OHF, as well as damages and injunctive relief to remediate the harm caused to OHF. Plaintiff originally pled twelve causes of action: a) Claims One and Two against all Defendants for equitable contribution under CERCLA section 107(a) and section 113(f) contribution, respectively, b) Claim Three against all Defendants for contribution and indemnity pursuant to HSAA, Cal. Health and Safety Code § 25363(e) and treble damages under § 25398.17, c) Claim Four against all Defendants for injunctive relief and litigation costs pursuant to RCRA § 6972, d) state law claims against Boeing, Claims Five through Eleven, for continuing nuisance, public nuisance, negligence, negligence per se, continuing trespass, waste, and equitable indemnity and contribution, and e) Claim Twelve for declaratory relief, seeking a judicial determination of the parties' respective liabilities for the OHF cleanup.

On April 23, 2007, Defendant United States moved for partial judgment on the pleadings or partial summary judgment on Plaintiff's RCRA claim and for partial judgment on the pleadings as to the HSAA claim. The City opposed the motion and the parties appeared before the Court on December 3, 2007 for oral argument on Defendant's motions. The case was subsequently stayed pending settlement negotiations. On April 17, 2009, the stay was lifted and Plaintiff was ordered to file an amended complaint. (Doc. 122.)

Plaintiff filed a Second Amended Complaint on May 18, 2009, advancing twelve causes of action, including claims under RCRA and HSAA. (Doc. 123-3.) Defendant United States filed a “Notice of Renewal of Pending Dispositive Motions” on August 7, 2009. The unopposed motion was granted on August 12, 2009.

On August 20, 2009, the United States renoticed its motion for partial judgment on the pleadings or partial summary...