United States District Court, E.D. California
CITY OF WEST SACRAMENTO, CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs,
v.
R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., a dissolved California corporation; at al., Defendants.
MEMORANDUM AND ORDER RE: PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT AGAINST DEFENDANTS R AND L BUSINESS
MANAGEMENT, JOHN CLARK, AND THE ESTATE OF NICK SMITH,
DECEASED
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE
Plaintiffs
City of West Sacramento, California (“the City”)
and the People of the State of California filed suit against
Defendants R&L Business Management and John Clark
(collectively referred to as “R&L”), the
estate of Nick Smith, et al., to address toxic levels of soil
and groundwater contamination resulting from the release of
hazardous substances at a property once occupied by a metal
plating facility. Before the court is plaintiffs' motion
for partial summary judgment against defendants R&L and
Smith. (Docket No. 95.)
I.
Factual Background
During
the 1940s, an automobile repair facility operated at operated
at 319 3rd Street, West Sacramento, California
(the “Property”). (Love. Decl. at 7.) Between
1940 and 1986, the Property was used for electroplating
operations. (Defs.' Resp. to Pls.' Statement of
Undisputed Facts (“Defs.' SUF”) ¶ 70. A
partnership of E. Birney Leland, Nick Smith, and Frank Rosen
owned and operated Capitol Plating during the early 1960s.
(Id. at ¶ 71.) The partnership dissolved in
1963. (Id. at ¶ 72.) Leland, Smith, and several
others, including John Clark, formed Stockton Plating, Inc.
in December 1963. (Id. at ¶ 73.) In 1973, Smith
and Clark again took over Capitol Plating. Smith became
president of Stockton Plating, Inc. and Clark took over as
general manager of the facility. (Id.; Pls.'
Mot. for Summ. J. at 12.)
The
Capitol Plating facility primarily plated chrome bumpers.
(Defs.' SUF ¶ 74.) The process for plating chrome on
to bumpers consists of striping the bumper in acid or
alkaline solutions to the bare metal. (Pls.'s Mot. for
Summ. J., Ex. 13 at 1 (Docket No. 95-15).) Before plating,
the metal may be ground and polished. (Id. at 2.)
The surface is buffed after each plating operation and after
the finish coat. (Id.) Each cycle involved the
bumper being placed in a different tank of metal solution:
first, copper; then, nickel; last, chromium. (Id.;
Pls.' Mot. for Summ. J. Ex. 2 (Dep. Richard Leland) at
63-64.)
For the
plating and washing cycles, a worker would manually lift the
bumpers, and move the bumpers between tanks containing either
chemicals or plain water. (Dep. Richard Leland at 65-66.) The
worker accomplished this by using two hooked rods to hook
onto the bumper and leverage it in and out of the tank.
(Id. at 64-65.) The bumper would be placed into a
tank containing a metal solution and an electrical current
would be applied to the tank. (Id. at 65-66.) The
worker would then lift the bumper from the tank and move it
to the next tank in the process. (Id.)
Due to
the height of the tanks, an elevated duckboard floor was
built so the workers could stand in the optimal position to
lift and lower bumpers into the metal solutions. (Pls.'
Mot for Summ. J., Ex. 1 (Dep. John Clark) at 84-85.)
Duckboard consisted of two-by-fours with half-inch spacers
set in a grid pattern on the floor to create an elevated
platform approximately three feet high for the workers to
walk on around the tank. (Id.) Any overflow from the
tanks that fell through the duckboard to a floor drain
connected to the sewer system. (Pls.' Mot. for Summ. J.,
Ex. 19 at 1; Decl. John Clark at 84 (Docket No. 95-3).)
Overflow could result, for example, from bumper bolt holes
holding liquid on the bumper's way out of the liquid and
releasing it once the bumper was out of the liquid. (Dep.
John Clark at 85-86.) The duckboard would get slippery with
the water from the plating tanks. (Id. at 90.) The
platers could then slip and drop the bumpers causing the
contents of the tank to splash outside of the tank.
(Id.)
If the
floor drain was unable to handle the volume of fluid, the
plating fluids would flow out of the building through a hole
in the wall or through the back door where they spill out
onto the ground outside. (Dep. John Clark at 97-99.) When
Clark started as the general manager of the Capitol Plating
facility, he noticed that the ground outside the hole in the
wall was colored blue, which suggests that acidic copper was
present. (Dep. John Clark at 77 (Docket No. 95-3).) To
prevent the solutions used in the metal plating process from
escaping the building, Clark covered the hole in the wall
with a dirt dam. (Id. at 82.; Decl. John Clark at
¶ 3 (Docket No. 102-3).) The dirt dam failed five to ten
times before Clark decided to build a concrete barrier in the
dam's place. (Dep. John Clark at 83.) When the dirt wall
broke, rinse water containing diluted concentrations of
plating fluids was likely released. (Defs.' Separate
Statement at 3, ¶ 6 (Docket No. 102-2).) Clark then
built a concrete wall to stop fluids from exiting the
facility. (Decl. Adam Love at 15.)
The
plating shop suffered two fires, one in 1973 and the other in
1985. Plating operations stopped in May of 1985. (Love Decl.
at 8.) Capitol Plating used the property for storage of
bumpers until 1991. (Id.) No business has operated
out of the Property since then. (Id.)
In
1986, the California Department of Health Services launched
an investigation on Capitol Plating after the Sacramento Bee
reported that R&L was illegally dumping waste on the
Property (the “Site”). (Defs.' Resp. to
Pls.' SUF at 3, ¶ 2f.) The Department investigated
and took samples and pictures of the facility. (Id.
at 3, ¶ 2g.) Later investigations at the Property showed
soil and groundwater contaminated with various heavy metals
including copper, chromium, and nickel at and emanating from
the Property. (Decl. Anne Farr at 7-10 (Docket No. 95-27).)
The levels of copper, nickel, and chromium at the Site exceed
federal and state regulatory limits for both groundwater and
soil. (Id.)
The
City filed suit alleging, inter alia, violations of
the Resource Conservation Recovery Act (“RCRA”)
§7002(a), 42 U.S.C. § 6972; the Comprehensive
Environmental Response, Compensation and Liability Act
(“CERCLA”) § 107(a), 42 U.S.C. §
9607(a), and the Gatto Act, Cal. Health & Safety Code
§§ 25403.1, 25403.5. Plaintiffs also raise claims
for public nuisance and declaratory relief. Plaintiffs now
seek summary judgment on the issue of liability on each of
these claims. (Docket No. 95.)
II.
Legal Standard
Summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A material fact is one that could affect the outcome
of the suit, and a genuine issue is one that could permit a
reasonable jury to enter a verdict in the non-moving
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The
party moving for summary judgment bears the initial burden of
establishing the absence of a genuine issue of material fact
and can satisfy this burden by presenting evidence that
negates an essential element of the non-moving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Alternatively, the movant can demonstrate that the
non-moving party cannot provide evidence to support an
essential element upon which it will bear the burden of proof
at trial. Id. Any inferences drawn from the
underlying facts must, however, be ...