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March 24, 1997

WILLIAM J. CLINTON, et al., Defendants.

The opinion of the court was delivered by: ILLSTON

 On March 14, 1997, the Court heard argument on defendant's motion for summary judgment and plaintiff's motion to file an amended complaint. Having considered the arguments of counsel and the papers submitted, the Court hereby grants defendants' motion for summary judgment and denies plaintiff's motion to file an amended complaint. *fn1"


 This action is an appeal from the Environmental Protection Agency's Environmental Appeals Board decision to deny two petitions by plaintiff A&W Smelters for reimbursement of costs incurred in complying with two administrative cleanup orders *fn2" issued by the EPA under section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9606(a).

 The material that is the subject of the lawsuit, sometimes referred to as "Ore Pile # 2," originated at the A&W mining claim located in Santa Fe Springs, CA (Kern County), on land leased from the United States Bureau of Land Management. Beginning in 1988, A&W had been issued numerous notices and citations regarding unsecured waste piles, including notices of violations of state hazardous waste regulations by the California Department of Toxic Substances Control. Def. Exhs. 3, 4, 5, 6, 8. On September 11, 1992, A&W was ordered by the Bureau of Land Management (BLM) to remove all ore and barrels from its site by October 16, 1992. Thereafter, A&W entered into an agreement with Roelof Mining Company in Baja, Mexico to transport the material from the A&W site in California to Baja, Mexico.

 Bergstrom Site (Order 93-03)

 The first cleanup order (93-03) related to the Bergstrom Site. Six truckloads of material that A&W had attempted to ship to Roelof were not allowed to pass from California into Mexico. The loads were then transported first to the yard adjacent to Russell Deupree's residence in Escondido, CA., and then to the property adjacent to David Bergstrom's residence in Sandy Valley, Nevada (the Bergstrom Site). The material was dumped in the Bergstrom yard in unsecured, exposed piles. *fn3"

 EPA's Technical Assistance Team ("TAT") visited the Bergstrom Site on December 4, 1992. Based on the findings of the TAT and tests of the material found at the Bergstrom Site, on December 17, 1992 the EPA issued CERCLA Order 93-03, directing A&W to clean up the Bergstrom Site. In response, A&W shipped the material to an authorized disposal facility.

 The AP Site (Order 93-06)

 The Applied Technologies or AP Site involved material from the same origin as the Bergstrom Site. In late 1992, A&W attempted to send seven truckloads of the material to Mexico for processing by Roelof. Four trucks were impounded by U.S. Customs and tested by the County of San Diego Hazardous Materials Team. Elevated levels of lead were found in the samples. U.S. Customs sent the trucks to the L&Z trucking facility for temporary storage. The other three truckloads were detained by Mexican authorities and repatriated to the United States on January 14, 1993.

 EPA was originally going to allow A&W to transport the material back to A&W's facilities until the material could be properly disposed of. However, A&W was unable to secure transportation for the material, and was informed by the EPA that if A&W did not assume custody of the material when it was returned to the U.S. on January 14, 1993, it would be considered abandoned. On January 15, 1993, the EPA issued Order 93-06 directing A&W to assume responsibility for the proper disposal of the seven truckloads of material which was temporarily being stored by U.S. Customs at the AP facility. A&W complied with the order by shipping the material to an approved disposal facility.

 In the present action, A&W has filed a complaint alleging that it is not liable for the cleanup costs incurred and that is should therefore be reimbursed pursuant to section 106(b)(2)(C) of CERCLA. In addition, plaintiff alleges that even if it is a liable party, the EPA's decision to issue cleanup orders 93-06 and 93-03 was arbitrary and capricious or otherwise not in accordance with the law, so plaintiff should be reimbursed pursuant to section 106(b)(2)(D) of CERCLA.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "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 . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function, however, is not to make credibility determinations, Anderson, 477 U.S. at 249, and the inferences to be drawn from the facts must be viewed in a light most favorable to the party ...

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