ELR Citation: ELR 20200
No(s). 04-2225 (N.D. Cal. Aug 21, 2009)

A district court granted in part and denied in part cross-motions for summary judgment in a development company's CERCLA, RCRA, and state nuisance claims against a variety of defendants concerning groundwater and soil contamination at its property. The company filed suit against the prior and current owners of a neighboring landfill, arguing that groundwater contamination emanating from the landfill moved beneath its property. The company also filed suit against the original generators, arrangers, and transporters of the solid and hazardous waste that is present in soil and in the groundwater plume underneath the property. The company's RCRA claim was barred because the defendants are already complying with a consent order issued by the state. But the company may go forward with its CERCLA claim. At trial, the company will need to establish that the fees and costs sought are response costs that were necessary and consistent with the national contingency plan. As for the company's nuisance claims, the company has suffered an injury. Its property interest has been harmed as a result of contamination flowing from the landfill, and this contamination has prevented the company from developing the land. However, the generator-arranger-transporter defendants' conduct—disposing of waste at the landfill—did not create or assist in the creation of the nuisance, as there is no evidence suggesting that their conduct was unreasonable. Accordingly, only the nuisance claims against the current and past owners of the landfill may proceed to trial.