ELR Citation: ELR 20614
No(s). Civ. S-88-1691 LKK (E.D. Cal. May 21, 1991)

The court holds that material issues of fact preclude summary judgment for any of the parties to a response cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The plaintiff sued the defendants as prior owners and operators of real property in California to recover the costs of cleaning up alleged hazardous substance contamination resulting from the corrosion or leaking of underground tanks containing gasoline, diesel, and waste oil. The court first rules that waste oil containing CERCLA hazardous substances does not fall under the CERCLA petroleum exclusion. The court finds no binding authority construing the exclusion, and CERCLA does not define the term "petroleum." However, the court finds persuasive a memo of the U.S. Environmental Protection Agency, and legislative history cited therein, to the effect that a release of substances found in used oil that are not found in crude oil or refined petroleum may trigger CERCLA response actions. Further, several CERCLA cases have assumed, in the course of deciding other issues, that the petroleum exclusion does not apply to waste oil or petroleum products contaminated with hazardous substances. The court denies summary judgment on all motions relating to the application of the petroleum exclusion to zinc, lead, and thallium found at elevated levels in soil samples taken at the property, because evidence supports the contentions of both sides on the statistical sufficiency of the samples and the source and levels of the lead in the samples. The court denies summary judgment on the issue of the sources of various metals found in the soil samples, since there is disputed evidence and a reasonable jury could find for the plaintiff.

The court denies the parties' motions for summary judgment based on standards promulgated by California. Relying on the statute's language, the court rejects the defendants' argument that the state standards relieve them of obligations they otherwise would have under CERCLA. The court also rejects the plaintiff's contention that defendants' CERCLA liability may be based on California law, since any heightened requirements under state law do not bear on CERCLA liability, but rather on the state causes of action the plaintiff has pled. The court holds that the factual dispute over whether a sufficient threat to public health was presented to justify response actions precludes summary judgment. The court further holds that the alleged inconsistency between the plaintiff's cleanup and the national contingency plan (NCP) is not a basis for granting summary judgment on the liability question, because consistency with the NCP is not an element of liability.

The court strikes the plaintiff's demand for a jury on its CERCLA causes of action, because courts have repeatedly held that a CERCLA suit seeking reimbursement for response costs lies in equity and does not entitle the parties to a jury trial under the Seventh Amendment. The court defers determination of the plaintiff's contention that it is entitled to a jury trial on its eight legal causes of action, because the plaintiff has not formally moved for such an order. The court grants the plaintiff's motion to withdraw various admissions, but requires the plaintiff to pay the defendants' attorney fees incurred in opposing the motion, plus a $500 sanction. The court also grants the request of two defendants for sanctions due to defects in the plaintiff's countermotion for partial summary judgment.

Counsel for Plaintiff
William Hvidsten
Downey, Brand, Seymour & Rohwer
555 Capitol Mall, Ste. 1050, Sacramento CA 95814
(916) 441-0131

Counsel for Defendant
Dale C. Campbell
Weintraub, Genshlea & Sproul
2535 Capitol Oaks Dr., Sacramento CA 95833
(916) 648-9400