The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge
MEMORANDUM OPINION AND ORDER
BEFORE THE COURT is Plaintiff's Motion for Partial Summary Judgment (ECF No. 55) and Defendant's Motion for Summary Judgment (ECF No. 60). Oral argument was heard on the motions in Riverside, California on June 27, 2011. Plaintiff was represented by Kenneth Ehrlich and Paul Kroeger. Defendant was represented by William Lee Smith and Scott Franklin.
Plaintiff Calmat Co. (herein "Vulcan") owns the Property at issue and also owns an adjacent quarry. Vulcan is one of the largest, if not the largest, miners of stone, sand, and gravel in quarries throughout the United States. Defendant San Gabriel Valley Gun Club (herein "Gun Club") leased the Property from Vulcan for use as a firing range for approximately 60 years (from 1947 to 2006). The lease agreement was periodically renegotiated and renewed. From 1947 to 1961 the Vulcan lease of the Property speaks of use of the Property for a firing range. From 1970 and thereafter, the Vulcan leases contained specific language restricting the use of the Property to "only as a Pistol, Rifle, Trap and Skeet range. . . " There were a total of eight lease agreements over the 60 years, with the most recent being 1992, which was amended by the First Amendment to the 1992 Lease (ECF No. 1, p. 141). The First Amendment to the 1992 Lease was executed in May 2002, and only changed the term (to 18 months) and rate of the 1992 Lease. The Amendment made no mention of any cleanup obligations upon termination of the Lease.
In the late-1980's/early-1990s, Vulcan began depositing mining tailings and overburden from the adjacent quarry on the area of the Property where the discharged bullets came to rest. Vulcan deposited hundreds of thousands of tons of material--thus burying some of the spent bullets and also creating a large hillside, or berm, into which bullets were fired.
Vulcan provided notice of its intent to terminate the Lease on or about May 4, 2005. The Lease was terminated on or about November 6, 2006. The Gun Club admits that its use of the Property resulted in the deposit of bullets, including lead bullets, on the Property. (ECF No. 64, p. 6). The Gun Club also admits that when it turned over the Property at the end of the Lease "there were casings and spent bullets (including spent lead bullets and portions thereof) present at the Property." (ECF No. 64, p. 11).
There is some factual dispute over what the Gun Club did to 'clean' the Property during the years of the Lease. The court need not resolve this dispute and it is not material to the court's decision herein. Vulcan characterizes Gun Club's efforts as inconsistent and sporadic. Gun Club states it regularly swept up casings and that on a less regular basis bullets were recovered and recycled. After the 1992 Lease terminated, the Gun Club also hired Fred Wooldridge to remove and recycle bullets, but Vulcan did not think this was adequate and stopped him from working on the Property. Mr. Wooldridge was on the Property with three truckloads of equipment, but Vulcan did not allow him to commence work. (ECF No. 63-1, Ex. K). In late-2006/early-2007, Gun Club proposed to remediate the Property in accord with the EPA's Best Management Practices for Lead at Outdoor Shooting Ranges, but Vulcan did not think this was sufficient. (ECF 1, ¶ 43-44).
The Gun Club admits that at the time of Lease termination it did not have sufficient funds to undertake the cleanup efforts proposed by Vulcan. The parties proposed experts have made estimates ranging from under $1.0 million upwards to $7 million to conduct remediation efforts. (See ECF No. 72, at Exhibits T & W). Vulcan has not entered into any contract to clean up the Property and there is no pending federal, state or local regulatory action demanding that Vulcan clean up the Property.
There are numerous claims and counterclaims. Vulcan filed a 15-count Complaint that with attachments exceeds 140 pages. Vulcan asserts claims under CERCLA, claims under California's Hazardous Substance Act, asserts breach of contract (the Lease), nuisance, trespass, negligence, waste, and seeks declaratory relief. (ECF No. 1). Gun Club's Counterclaim (filed twice at ECF No. 9 & 19) asserts 8 claims, including under CERCLA, California's Hazardous Substance Act, negligence, and breach of contract. The only federal claim giving this court jurisdiction over this action is the asserted CERCLA claim. The California state law claims are voluminous and somewhat complex.
Vulcan's Motion (ECF No. 55) seeks partial summary judgment in its favor on only the state law claims for breach of contract, nuisance, trespass, and waste. It also seeks judgment against Gun Club on Gun Club's counterclaim for breach of contract.
Gun Club's Motion (ECF No. 60) argues that the CERCLA claims should be dismissed because Vulcan has failed to comply with the National Contingency Plan ("NCP") and has not demonstrated a commitment to a CERCLA quality cleanup. Gun Club requests the court dismiss the federal CERCLA claims and decline jurisdiction over the state law claims.
A. Plaintiff's CERCLA claims
Vulcan's CERCLA claims are the sole basis for jurisdiction in this court, and the Gun Club argues they are unripe, should be dismissed, and this court should decline to exercise jurisdiction over the remaining state law claims. Accordingly, this court begins its analysis with determination of this issue as it could render unnecessary this court's attention to the remaining state law claims.
The elements of a CERCLA Section 107 response cost claim are: 1) the area on which hazardous substances are found must constitute a defined "facility"; 2) a "release" or "threatened release" of a hazardous substance has occurred; 3) the plaintiff has incurred "response costs" that are "necessary" and "consistent with the National Contingency Plan ("NCP"); and 4) the defendant is among one of the four classes of persons subject to liability. SPPI-Somersville, Inc. V. TRC Companies, Inc., 2009 WL 2612227 ...