ELR Citation: ELR 20653
No(s). C93-3988-FMS (N.D. Cal. Nov 9, 1994)

The court holds that federal, state, and local government defendants, whose officers practiced target shooting with lead shot at a site that was previously a rifle, gun, and trap range, may be liable for the cleanup of lead contamination at the site in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action. The court first holds that the referee, who was appointed to sell the property on behalf of the owners, does not have the authority under state law to file this action on behalf of the owners. Fed. R. Civ. P. 17, however, indicates that dismissal is not the proper remedy. Thus, the court holds that the referee may amend the complaint to substitute the property owners as plaintiffs and to dismiss the referee as a party. Although the referee has not incurred response costs under CERCLA, the court holds that submission of the property owners as plaintiffs will cure this defect because the property owners have incurred response costs.

Turning to the elements of CERCLA liability, the court holds that the former gun club is a "facility" under CERCLA §101(9) because lead is present in the soil in concentrations more than sufficient to be classified as hazardous. The court next holds that there has been a "release" of hazardous substances into the environment at the site under CERCLA §101(22) because spent bullet casings and lead fragments have been found there and samples revealed lead concentrations in the soil. The court then holds that the government defendants are "responsible parties" under CERCLA §107 because they have each admitted that their officers discharged firearms with lead bullets at the site, contributing to the contamination. The court holds that a question of material fact exists as to whether the referee has incurred response costs. The court holds that there is a reasonable basis for apportioning liability based on the volume of lead each contributed to the site and the divisibility of the site into two discrete sections, and the final determination of each parties' pro rata share of the response costs must be deferred. Finally, the court holds that it would be impossible to determine the government defendants' liability at this time because the owners may be liable for a portion of the response costs as well.

Counsel for Plaintiff
Bruce C. Paltenghi
Gordon, DeFraga, Waltrous & Pezzaglia
611 Las Juntas St., P.O. Box 630, Martinez CA 94553
(510) 228-1400

Counsel for Defendants
Steven M. Talson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000