City of West Sacramento v. R and L Business Management

          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 3^rd 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 ...