Mr. Vitale became aware of cracks in the slab in the home at 6025 Edgewater, specifically cracks in the living room and bathroom. According to Mr. Vitale, the cracks can be repaired without disturbing the foundation of the home. He feels no exposure will be created by filling the cracks. In fact, soil and dust discovered in the crack in the bathroom tested negative for contaminants.
Mr. Vitale and others on behalf of the State of California, Department of Health Services signed a remedial action certification form (Exhibit 31) after the State finished its cleanup. According to the certification, "all appropriate response actions have been completed, . . . all acceptable engineering practices were implemented and . . . no further removal/remedial action is necessary.". The certification goes on to say that a deed restriction will be placed on the properties to notify "future owners that hazardous waste remains beneath current residents' homes." Mr. Vitale testified that presently there is no imminent and substantial endangerment.
On October 16, 1991, plaintiff Bolton signed a covenant to restrict use of the property at 6025 Edgewater Street. (Exhibit 12). To date, the deed restriction has not been recorded. The deed restriction is a notice that the property at 6025 Edgewater has been used for disposal of hazardous wastes; that hazardous wastes remain in the soils beneath the residence on the property and that if these wastes should become uncovered, exposure to the contaminated soils may occur.
John Scandura of the California Department of Health Services testified that he believed hazardous waste remains in the soil beneath the residence at 6025 Edgewater. However, the structure and concrete on the lot are barriers to the release of contaminants.
Mr. Scandura testified that if the house or driveway slabs are disturbed so as to expose soil, remediation might be required, depending on the type and level of contaminants present in the soil. Nevertheless, there is presently no imminent and substantial endangerment and there is presently no release of a hazardous substance.
After learning of the contamination in her soil, plaintiff Price consulted with an attorney, Kerry Tepper. According to plaintiff Price, the attorney's fees incurred as a result of Tepper's services were $ 5,473.71. Eventually, Tepper did not feel that he was in a position to pursue a lawsuit in this case and therefore, he assisted plaintiffs Price and Bolton in finding an attorney who could handle the job. In February 1989, plaintiffs hired attorney John Reaves. The plaintiffs entered into a fee agreement (Exhibit 46) with Mr. Reaves. This lawsuit resulted against the Moses defendants, Sylvan and the United States Navy. Eventually, plaintiffs received $ 30,000.00 from Sylvan as a result of a settlement. The Court finds that the $ 30,000.00 payment received from Sylvan was for the cleanup and associated costs as alleged by plaintiffs in the present lawsuit.
In a lawsuit filed in State Court by plaintiffs Gloria Price and Jean Bolton against various insurance companies, the plaintiffs alleged a breach of insurance contract, bad faith, and sought declaratory relief. Plaintiffs alleged defendants failed to timely respond to plaintiffs' claims under the policy for response costs. That case was eventually settled and plaintiff Price received a total of $ 250,000.00 from two different insurance companies. The Court finds that the proceeds were not received for cleanup and associated costs.
The total current charges for attorneys' fees as a result of the present litigation is $ 290,291.08. The total fees paid to date by plaintiff Price is $ 122,002.26 and the total fees at risk pursuant to the fee agreement is $ 286,278.48. (Exhibit 55).
CERCLA imposes strict liability upon owners and operators of facilities at which hazardous substances were disposed. Idaho v. Hanna Mining Co., 882 F.2d 392, 394 (9th Cir. 1989).
In order to promote the objectives of CERCLA, that is, providing for liability, compensation, cleanup and response for hazardous substances into the environment, Congress has created a private right of action for certain response costs against certain persons who contributed to the dumping of hazardous waste at a site. 3550 Stevens Creek Assoc. v. Barclays Bank of California, 915 F.2d 1355, 1357 (9th Cir. 1990); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989); Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890-92 (9th Cir. 1986).
To prevail in a private cost recovery action, plaintiff must establish that the site on which hazardous substances are contained is a "facility" under CERCLA's definition of that term, that "release" or "threatened release" of any hazardous substance from the "facility" has occurred, that such "release" or "threatened release" has caused plaintiff to incur "response costs" that were necessary and consistent with the national contingency plan and that defendant is within one of the statutory classes of persons subject to liability. 3550 Stevens Creek Assoc., 915 F.2d at 1358.
Plaintiffs have not met their burden of proof that Harry Moses knew a junkyard existed at 6025 Edgewater or that toxic waste had been dumped on the site. However, because plaintiffs have met their burden of proof that Harry Moses was a past owner of the subject property (6025 Edgewater) during a time that "disposal" of "hazardous substances" occurred at the subject property which resulted in a "release" or "threatened release", causing plaintiffs to incur "response costs" consistent with the national contingency plan, Mr. Moses is liable under CERCLA. The Court finds that Harry Moses is liable for only one percent (1%) of the "response costs" incurred by plaintiffs. CERCLA § 107(a), 42 U.S.C. § 9607(a).
The Court also finds that based upon the evidence, Sylvan "disposed" of "hazardous substances" at a "site" which resulted in a "release" or a "threatened release" which caused plaintiffs to incur "response costs". The Court finds that Sylvan is only four percent (4%) liable for any "response costs" incurred by plaintiffs.
Finally, plaintiffs also have met their burden of showing that the United States Navy was a "transporter" of "hazardous substances" to a "facility" and that there was a "release" of "hazardous substances" at a "facility". The United States Navy is ninety-five percent (95%) liable for any "response costs" incurred by plaintiffs.
Plaintiff Price incurred $ 30,153.56 in "necessary" cleanup "response costs" consistent with the national contingency plan. CERCLA § 107(a), 42 U.S.C. § 9607(a).
The Court finds that relocation was necessary and that plaintiff Bolton incurred relocation costs in the amount of $ 4,475.00.
CERCLA provides for contribution from other potentially liable entities using such equitable factors as the Court determines is appropriate. CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1). Here, the Court has found that Sylvan contributed to the release of hazardous waste. Therefore, Sylvan is responsible for proportionate share of response costs. As stated before, that share is four percent (4%) of the total response costs incurred.
The Court has also found that Harry Moses has contributed to the release of hazardous waste and, therefore, is contributorily liable for his proportionate share of response costs. As stated before that proportionate share is one percent (1%) of the total response costs incurred.
The Court finds that plaintiff Price is not responsible for any release of hazardous waste as a result of hiring Sylvan to excavate for a swimming pool.
CERCLA provides that any person who receives compensation for removal costs pursuant to any other federal or state law is precluded from receiving compensation for the same removal costs under CERCLA. CERCLA § 114(b), 42 U.S.C. § 9614 (b). Here, plaintiffs received a $ 25,000.00 reimbursement from the State of California for the cleanup and associated costs. In addition, plaintiffs received a $ 30,000.00 settlement for the private cleanup and associated costs. The Court finds that these payments were made pursuant to state and/or federal law. Thus, a setoff and credit for these payments from other sources reduces the total amount of damages to which plaintiffs are entitled.
In sum, this Court finds that plaintiffs have met their burden of proof under CERCLA that the United States Navy and Harry Moses are liable for the cleanup and relocation costs, which the Court finds were necessary response costs incurred by plaintiffs under count one of the complaint. Plaintiffs incurred costs in the total amount of $ 34,628.56. The United States Navy is responsible for ninety-five percent (95%) of the costs incurred, Harry Moses is responsible for one percent (1%) and Sylvan for four percent (4%). However, since the Court has found that plaintiffs have received payments from other sources in the amount of $ 55,000.00, the net award to plaintiffs is zero. Each party shall bear its respective costs of suit.
Defendants are directed to prepare the judgment and submit it to the Court within two weeks of the date of this order.
IT IS SO ORDERED.
Dated: Dec. 3, 1992
IRMA E. GONZALEZ
United States District Judge