Back

HSAA and CERCLA - The HSAA Claim and the HS

January 14, 2022

California

,

United States of America

Issue

Is an expert opinion necessary to establish the source of contamination?

Conclusion

The Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA") is California's counterpart to the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Under both the HSAA and CERCLA, to prevail in a private cost recovery action, a plaintiff must establish: (1) ) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term; (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred; (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan"; and (4) the defendant is within one of four classes of persons subject to the liability provisions of section 107(a) of CERCLA. (Orange Cnty. Water Dist. v. Alcoa Global Fasteners, Inc.)

To show causation in an HSAA claim, the plaintiff is only required to show a release or threatened release from a site and a causal connection between that release or threatened release and its response costs. The causation requirement is independent of a given defendant. (Orange Cnty. Water Dist. v. Alcoa Global Fasteners, Inc.)

In both "one-site" cases, where the contamination and the remediation action occur at the same location, and "two-site" cases, where the locations are different, the plaintiff is required to prove, in their prima facie case, that a release from a facility for which a defendant is a responsible person caused the plaintiff to incur response costs. (Orange Cnty. Water Dist. v. Alcoa Global Fasteners, Inc.)

To survive a motion to dismiss, a CERCLA plaintiff need only allege sufficient facts to demonstrate the link between their response costs and the targeted off-site release. (Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist.)

In a "two-site" CERCLA case, a plaintiff meets their burden on summary judgment if it: (a) identifies a contaminant at its site; (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant's site; and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site. If the plaintiff meets this burden, then the defendant must proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation. (Castaic Lake Water Agency v. Whittaker Corp.)

In Fmc Corp. v. Vendo Co., the United States District Court for the Eastern District of California stated that the origin and paths of contaminant releases cannot be analyzed without expert testimony when it rejected as oversimplistic the defendant's argument that the third-party defendant had not made any affirmative claims, so it only needed to prepare for its defense and thus did not need to subpoena the plaintiff's experts.

In Castaic Lake Water Agency v. Whittaker Corp., the plaintiffs met their burden on summary judgment by presenting evidence that Perchlorate was detected in the Newhall, Santa Clarita, and Valencia wells, as well as at the defendant's site. The plaintiffs also provided expert evidence that was sufficient to establish that transport through surface water entering the Santa Clara River upstream of the plaintiffs' wells, combined with subsequent infiltration through the Alluvial Aquifer and Saugus Formation near the plaintiffs' wells, was a plausible migration pathway for perchlorate to travel from the defendant's site to the wells.

Law

In Orange Cnty. Water Dist. v. Alcoa Global Fasteners, Inc., 219 Cal.Rptr.3d 474, 12 Cal.App.5th 252 (Cal. App. 2017), the California Court of Appeal for the Fourth District explained that the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA") is California's counterpart to the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Under both the HSAA and CERCLA, to prevail in a private cost recovery action, a plaintiff must establish that: (1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term; (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred; (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan"; and (4) the defendant is within one of four classes of persons subject to the liability provisions of section 107(a) of CERCLA (codified at 42 U.S.C. § 9607(a)) (at 296-298):

The District challenges the court's judgment on its HSAA claim. It primarily contends the court prejudicially erred by misinterpreting the elements of the claim, including causation, necessity of response costs, and NCP

[12 Cal.App.5th 297]

consistency. The HSAA is California's counterpart to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA; 42 U.S.C. § 9601 et seq.). (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 865, fn. 4, 77 Cal.Rptr.2d 107, 959 P.2d 265.) Among other things, it implements California's responsibilities under CERCLA's "superfund" program and establishes a Hazardous Substance Account to fund environmental remediation actions and related efforts. (City of Lodi v. Randtron (2004) 118 Cal.App.4th 337, 351, 13 Cal.Rptr.3d 107 (City of Lodi); BKHN, Inc. v. Department of Health Services (1992) 3 Cal.App.4th 301, 307, fn. 2, 4 Cal.Rptr.2d 188.)

The HSAA also includes a private right of action. It provides, in relevant part, that "[a] person who has incurred response or corrective action costs in accordance with this chapter, Chapter 6.5 (commencing with Section 25100), or the federal act may seek contribution or indemnity from any person who is liable pursuant to this chapter." (Health & Saf. Code, § 25363, subd. (d).)18 The scope of this private right of action is at issue in the appeal

[219 Cal.Rptr.3d 514]

The HSAA adopts CERCLA's standards for determining liability: " ‘Responsible party’ or ‘liable person,’ for the purposes of this chapter, means those persons described in Section 107(a) of the federal act (42 U.S.C. Sec. 9607(a))." (Health & Saf. Code, § 25323.5, subd. (a)(1); see Gregory Village Partners, L.P. v. Chevron U.S.A., Inc. (N.D.Cal. 2011) 805 F.Supp.2d 888, 897 ["A claim under the HSAA has the same elements as a claim under CERCLA."].)

As relevant here, CERCLA imposes liability on "the owner or operator of a vessel or a facility, [¶] [or] any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of [¶],...from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance...." (42 U.S.C. § 9607(a).) A liable person is responsible for, among other things, "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;" "any other necessary costs of response incurred by any other person consistent with the national contingency plan;" and "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release[.]" (42 U.S.C. § 9607(a)(4)(A)-(C).)

[12 Cal.App.5th 298]

Under CERCLA and the HSAA, " ‘[t]o prevail in a private cost recovery action, a plaintiff must establish that (1) the site on which the hazardous substances are contained is a "facility" under CERCLA's definition of the term, Section 101(9), 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" of any "hazardous substance" from the facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that were "necessary" and "consistent with the national contingency plan," 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [42 U.S.C. § 9607(a) ].’ " (Carson Harbor Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 870-871 (Carson Harbor I) [en banc].)19

Once these elements are proven, an HSAA defendant is strictly liable for recoverable costs (Health & Saf. Code, § 25363, subd. (c) ) unless the defendant establishes an applicable defense (id., § 25323.5, subd. (b)) or the circumstances justify apportionment (id., § 25363, subds. (a) -(b) ). A similar scheme exists under CERCLA: "Potentially responsible parties under CERCLA are strictly liable for cleanup costs, [citation],...subject only to the statute's narrow defenses for damages caused solely by acts of God, war, or third parties." (Westfarm Associates L.P. v. Washington Suburban Sanitary Com. (4th Cir. 1995) 66 F.3d 669, 677; see 42 U.S.C. § 9607(b).) As noted, the HSAA largely incorporates CERCLA's defenses. (Health & Saf. Code, § 25323.5, subd. (b).)

The Court explained that to show causation in an HSAA claim, the plaintiff is only required to show a release or threatened release from a site and a causal connection between that release or threatened release and its response costs. The causation requirement is thus independent of a given defendant. The lack of a causal connection between a defendant's actions and the release or threatened release that caused the incurrence of response costs is instead an affirmative defense to an HSAA or CERCLA claim that the defendant must prove (at 306-307):

We agree with the District's first argument that the court erroneously required

[219 Cal.Rptr.3d 521]

it to show that each defendant caused the District's response costs. Instead, it is only required to show a release or threatened release from a site and a causal connection between that release or threatened release and its response costs. "[V]irtually every court that has considered this question has held that a CERCLA plaintiff need not establish a direct causal connection between the defendant's hazardous substances and the release or the plaintiff's incurrence of response costs." (United States v. Alcan Aluminum Corp. (3d Cir. 1992) 964 F.2d 252, 265 (Alcan Aluminum); see State of New York v. Shore Realty Corp. (2d Cir. 1985) 759 F.2d 1032, 1044 (Shore Realty).) "It is clear from the text, structure, and legislative history of [42 U.S.C. § 9607 ] that the provision does not require a plaintiff to show that a particular defendant caused either the release or the incurrence of response costs in order to prove liability." (Kalamazoo River Study Group v. Menasha Corp. (6th Cir. 2000) 228 F.3d 648, 655 (Kalamazoo River).)

The causation requirement under CERCLA and HSAA is therefore independent of a given defendant. (Kalamazoo River, supra, 228 F.3d at p. 655.) It focuses on whether there was a release or threatened release at the site or facility at issue, not whether the defendant caused the release or threatened release. For purposes of the third element, a plaintiff need prove only that a release or threatened release occurred at the site that caused the plaintiff to incur necessary response costs. (Carson Harbor I, supra, 270 F.3d at pp. 870-871.)

Whether a given defendant is liable is governed by the fourth element. This element identifies several categories of potentially liable defendants (or, in CERCLA terminology, "potentially responsible parties"). These categories include persons who might otherwise not be considered liable under traditional tort theories, e.g., current owners and operators of a contaminated site. (See 42 U.S.C. § 9607(a)(1).) These categories are based on the defendant's relationship to the site, not the defendant's relationship to the release or threatened release that caused the incurrence of response costs. (See Alcan Aluminum, supra, 964 F.2d at p. 265 ["[T]he version [of CERCLA] ultimately passed by Congress...imposed liability upon a class of responsible

[12 Cal.App.5th 307]

persons without regard to whether the person specifically caused or contributed to the release and the resultant response costs."]; Asarco LLC v. NL Industries, Inc. (E.D.Mo. 2015) 106 F.Supp.3d 1015, 1031 (Asarco) ["Once the connection between the defendant and a hazardous waste site has been established (because the defendant fits into one of the four categories of responsible parties), ‘it is enough that response costs resulted from "a" release or threatened release—not necessarily the defendant's release or threatened release.’ "].)

The lack of a causal connection between a defendant's actions and the release or threatened release that caused the incurrence of response costs is instead an affirmative defense that the defendant must prove. CERCLA provides, "There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by [¶]...[¶] (3) an act or omission of a third party" under specified circumstances. (42 U.S.C. § 9607(b).) This defense has been incorporated into the HSAA. (Health & Saf. Code, § 25323.5, subd. (b); see id., § 25363, subd. (a).) Requiring a plaintiff to prove that a release or threatened release by the defendant

[219 Cal.Rptr.3d 522]

caused the incurrence of response costs would render this affirmative defense superfluous. (Kalamazoo River, supra, 228 F.3d at p. 655; Alcan Aluminum, supra, 964 F.2d at p. 265; Shore Realty, supra, 759 F.2d at p. 1044.)

In a footnote, the Court rejected the plaintiff's distinction between "one-site" cases, where the contamination and the remediation action occur at the same location, and "two-site" cases, where the locations are different. The Court explained that in both cases, the plaintiff is always required to prove, in their prima facie case, that a release from a facility for which a defendant is a responsible person caused the incurrence of response costs (at footnote 26):

26 The District relies heavily on a perceived distinction between so-called "one-site" cases, where the contamination and the remediation action occur at the same location, and so-called "two-site" cases, where the locations are different. We reject this distinction. As one federal district court explained, "After a review of the statute, its legislative history, and applicable case law, the Court holds that the analytical framework that applies in a two-site CERCLA case is no different than the framework that applies in a one-site CERCLA case....Rather, [42 U.S.C. § 9607(a)] always requires a plaintiff to prove, in its prima facie case, that a release from a facility for which the defendant is a responsible person caused the incurrence of response costs." (Asarco LLC v. Cemex, Inc. (W.D.Tex. 2014) 21 F.Supp.3d 784, 804.)

In Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 39 F.Supp.3d 1059 (D. Ariz. 2014), the defendants argued that the plaintiff's claim must be dismissed because the case was a "two-site" CERCLA case and the plaintiff did not plead factual allegations that connected any of the moving defendant's operations and alleged released to each particular well that was being treated. The United States District Court for the District of Arizona noted that this was a motion to dismiss so the plaintiff would only need to allege facts sufficient to demonstrate a causal connection between the defendants' release of hazardous substances and the costs that the plaintiff's incurred in cleaning them up. The Court found that the plaintiff alleged sufficient facts as to each of the three requirements under Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053 (C.D. Cal. 2003) 272 F.Supp.2d 1053, and therefore alleged sufficient facts to demonstrate a causal link between the contamination at the defendants' off-site facilities and the contamination of its groundwater wells. The plaintiff's allegations included a reference to findings from the Arizona Department of Environmental Quality. The Court denied the defendants' motion to dismiss on the basis that the plaintiff did not demonstrate causation (at 1073-1075):

Next, Defendants argue that this case is a “two-site” CERCLA case, and because RID has not pled factual allegations that connect any particular Moving Defendant's operations and alleged releases to each particular well that is being treated, RID has not demonstrated causation; thus, RID's claim must be dismissed. (Dkt. # 732 at 10–12.)

Defendants cite Kalamazoo River Study Group v. Rockwell International Corp., which states: “In a ‘two-cite’ case ... where hazardous substances are released at one site and allegedly travel to a second site, ... plaintiff must establish a causal connection between the defendant's release of hazardous substances and the plaintiff's response costs incurred in cleaning them up.” Id. 171 F.3d 1065, 1068 (6th Cir.1999). Even assuming this is a “two-site” case, the Court concludes RID has sufficiently alleged facts to establish the heightened causal connection required in such cases.7

First, again, the Court reminds that this is a Motion to Dismiss. The cases cited by Defendants do not involve motions to dismiss. In Kalamazoo, cited by Defendants, the Sixth Circuit Court of Appeals reviewed the district court's grant of summary judgment in favor of defendants. Id. The court affirmed, noting that “in this case, the evidence presented leaves a ‘gap’ that is simply too wide to allow a jury to speculate on the ultimate issue of causation.” Id. at 1073. Thus, while the court in Kalamazoo stated that “plaintiff must establish a causal connection,” even assuming the Sixth Circuit's Kalamazoo causation standard applies, here, on the contrary, RID would only need allege sufficient facts that demonstrate a causal connection between Defendants' release of hazardous substances and Plaintiff's response costs incurred in cleaning them up.8 Moreover, as discussed in

[39 F.Supp.3d 1074]

United States v. Washington State Department of Transportation, the causation standard espoused in Kalamazoo is perhaps inconsistent with the “minimum casual nexus” most courts require under CERCLA; rather, the court in Washington expressed support for the causation approach set forth in Castaic Lake as more consistent with the CERCLA objectives. See United States v. Wash. State Dept. of Transp., No. 08–5722RJB, 2010 WL 4723718, at *3 (W.D.Wash. Nov. 17, 2010) (citing Castaic Lake, 272 F.Supp.2d at 1066).

Although it discusses summary judgment, Castaic Lake is instructive on the causation analysis relevant to the motion to dismiss stage. In Castaic Lake, the court summarized:

[I]n a two-site CERCLA case, the plaintiff meets its burden on summary judgment if it (a) identifies contaminant at its site, (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant's site, and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site. If the plaintiff meets this burden, the defendant must then proffer evidence sufficient to create a genuine issue of fact as to its inability to disprove causation.

Castaic Lake, 272 F.Supp.2d at 1066.

Here, as to each Defendant, RID has alleged facts as to each of these: RID has alleged (1) that specific VOC Contaminants affect its groundwater wells, (2) that the same VOC Contaminants were released at the Defendants' sites, and (3) a “plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site” exists.

As to the “plausible migration pathway,” RID has alleged that (1) upon reaching the groundwater table at each of the Defendants' sites, the VOC Contaminants dissolve into the uppermost aquifer where groundwater movement within the region is predominantly controlled by RID's well-pumping (TAC ¶ 54); (2) the contaminated groundwater in all three regional sites is hydrologically connected to the groundwater pumped by RID (id.); (3) the commingled plumes of contaminated groundwater underlying the Defendants' facilities located within the M–52 Site and the WCP Area Sites flow toward and enter the WVBA Site in response to RID's well-pumping from groundwater wells located in the WVBA Site (id.); and (4) the WVBA WQARF Site and the adjacent WCP Area Sites and M–52 Site are all impacted by multiple VOC Contaminants forming a large, commingled plume that is “collectively one of the largest contaminant plumes in the country” (id. ¶ 55). More specifically, RID has alleged that according to the ADEQ's RI Report, “[c]ontributors to this commingled plume include industrial facilities and contaminated groundwater from the east, as regional groundwater flow is generally westward.” (Id. ¶ 45.) RID has included in its Complaint a map demonstrating the direction of the groundwater flow and the relative positions of the sites and RID's wells—thus demonstrating the groundwater plumes impacting and threatening RID's wells and their relative location in relation to the migration of the groundwater. (Id. ¶ 49.)

Accordingly, at this stage of litigation, the Court concludes that RID has alleged sufficient facts to demonstrate a causal

[39 F.Supp.3d 1075]

link between VOC Contamination at Defendants' off-site facilities and the VOC Contamination of its groundwater wells. Therefore, the Court DENIES Defendants' Motion to Dismiss on this basis.

In a footnote, the Court distinguished this case from "two-cite" CERCLA cases. The Court noted that while a plaintiff's claim must fail at the summary judgment stage if they lack evidence of causation, to survive a motion to dismiss a plaintiff need not present any evidence linking its response costs to the targeted off-site release, they need only to allege sufficient facts to demonstrate the link (at footnote 8):

8. Defendants also quote Innis Arden Golf Club v. Pitney Bowes, Inc., 629 F.Supp.2d 175, 186 (D.Conn.2009), which states that in a two-site CERCLA case, the “plaintiff must provide some evidence linking its response costs to the targeted offsite release of contaminant.” (See Dkt. # 732 at 11.) Again, in Innis, the court evaluated a motion for summary judgment, not a motion to dismiss. Innis, 629 F.Supp.2d at 176 (concluding that “[l]acking evidence of causation, Innis Arden's claims must fail, and so the Defendants are entitled to summary judgment”). Here, in contrast, RID need not present any evidence linking its response costs to the targeted off-site release, but rather must only allege sufficient facts demonstrating the same.

No decisions were identified that specifically discussed whether expert testimony was required in the situation where a contaminant allegedly originated from an upgradient offsite property.

However, in Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053 (C.D. Cal. 2003) 272 F.Supp.2d 1053 ("Castaic Lake") the United States District Court for the Central District of California held that in a "two-site" CERCLA case, the plaintiff meets their burden on summary judgment if it: (a) identifies a contaminant at its site; (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant's site; and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site. If the plaintiff meets this burden, then the defendant must proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation (at 1066):

Although Westfarm, Alcan, Artesian and Bliss involve a variety of factual scenarios, they all stand for a common causation principle: in a two-site CERCLA case, the plaintiff meets its burden on summary judgment if it (a) identifies contaminant at its site, (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant's site, and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site.14 If the plaintiff meets this burden, the defendant must then proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation.

In this case, the plaintiff met their burden on summary judgment by presenting evidence that Perchlorate was detected in the Newhall, Santa Clarita, and Valencia wells, as well as at the defendant's site. The plaintiffs also provided expert evidence that was sufficient to establish that transport through surface water entering the Santa Clara River upstream of the plaintiffs' wells, combined with subsequent infiltration through the Alluvial Aquifer and Saugus Formation near the plaintiffs' wells, was a plausible migration pathway for perchlorate to travel from the defendant's site to the wells (at 1067):

Applying the principles set out above, the Court finds that Plaintiffs have proffered evidence sufficient to meet their burden as to causation. Perchlorate has been detected in the Newhall, Santa Clarita and Valencia wells. See Ohland Rep. Table 1; Todd Rep. at 12.16 Perchlorate also has been detected at the Whittaker-Bermite site. See n. 8 supra and accompanying text.

As to migration pathways, Plaintiffs' and Defendants' experts generally agree that perchlorate might travel to Plaintiffs' wells via surface water, the Alluvial Aquifer or the Saugus Formation.17 Compare Ohland Rep. at 24-28 with Todd Rep. at 33-34. For purposes of this motion, the Court need only focus on surface water as a plausible migration pathway.

Plaintiffs' hydrogeology experts, Drs. List and Todd, opine that the perchlorate detected in surface water runoff from areas in the southwest corner of Whittaker-Bermite site travels through canyons located in the southwestern section of the site and enters the South Fork of the Santa Clara River upstream of the Plaintiffs' four wells. List Rep. at 7; Todd Rep. at 33-34. Although Plaintiffs' wells draw from the underlying Saugus formation, Dr. Todd opines (based on perchlorate detection in groundwater on the Whittaker-Bermite site) that perchlorate traveling in surface water infiltrates both the Alluvial Aquifer and underlying Saugus formation — making surface water a "viable migration pathway[]" to Plaintiffs' wells. Todd Rep. at 33. See also List Rep. at 7. Dr. List also opines, based on tests conducted near the site's northern border, that such infiltration down from surface water "is likely to be significant wherever surface runoff has occurred." List Rep. at 7. Finally, Dr. Todd explains that perchlorate, which is denser than water, will sink by gravity downward through the water column. Todd Rep. at 32.

This expert evidence is sufficient to establish that transport through surface water entering the Santa Clara River upstream of Plaintiffs' wells, combined with subsequent infiltration through the Alluvial Aquifer and Saugus Formation near Plaintiffs' wells, is a plausible migration pathway for perchlorate to travel from the Whittaker-Bermite site to the wells.

In Fmc Corp. v. Vendo Co., 196 F.Supp.2d 1023 (E.D. Cal. 2002), the defendant filed a motion to quash a third-party defendant's proposed subpoenas of the plaintiff's experts. In support of their motion, the defendant argued that the third-party defendant had not made any affirmative claims, so it only needed to prepare for its defense. The United States District Court for the Eastern District of California noted that this was overly simplistic because the origin and paths of contaminant releases cannot be analyzed without expert testimony (at 1041-1402):

Floway contends BNSF should have jointly designated experts with FMC as is customarily done in such cases. Floway's

Page 1042

Opp. at p. 3. Floway maintains that in the absence of any agreement with FMC, BNSF has no right to "parasitically" benefit from FMC's efforts. See id. Floway observes BNSF has not made any affirmative claims in this litigation, so it needs only to prepare for its defense. See id. at p. 4. This is overly simplistic because the origin and paths of contaminant releases cannot be analyzed without expert testimony and the causes of and need for remediation consistent with the NCP must be established.

In Walnut Creek Manor, LLC v. Mayhew Center, LLC, 622 F.Supp.2d 918 (N.D. Cal. 2009), the United States District Court for the Northern District of California held that a triable issue of fact existed as to the source of the contaminant in a "two-site" CERCLA case. The Court noted that the circumstantial evidence of PCE use on the defendant's property consisted of the plaintiff's environmental studies and the fact that a company once located on the defendant's property was in a business that typically used PCE, although the owner of that company testified that he never used PCE. The defendants presented expert testimony that the source of the PCE was the plaintiff. The Court found that both the plaintiff's expert and the defendant's expert provided relevant and reliable opinions based on sound scientific methodologies even though they came to different conclusions and there was a triable issue of fact as to the source of the PCE contaminant (at 927-928):

MC argues that even if Warner's testimony is admissible, WCM has not established that a release of PCE came from MC and migrated to WCM. In Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1066 (C.D.Cal.2003), the court stated that

in a two-site CERCLA case, the plaintiff meets its burden on summary judgment if it (a) identifies contaminant at its site, (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant's site, and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant's facility to the plaintiff's site. If the plaintiff meets this burden, the defendant must proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation.

MC argues that there is a material factual dispute as to whether anyone at MC ever

Page 928

possessed PCE. Neither party has come forward with direct evidence that persons on MC's property used PCE. The circumstantial evidence of PCE use on MC's property consists of (1) WCM's environmental studies and (2) the fact that a company once located on MC's property, Etch-Tek, was in a business that typically used PCE, although the owner of Etch-Tek testified that he never used PCE.

Moreover, MC presents expert testimony that the source of PCE is WCM, not MC. MC's expert, Jan Schutze, states that "PCE concentrations consistently increased with depth, suggesting contamination from a lateral source or sources. Based on the currently available evidence, these up-gradient sources are on the WCM property." Schutze Decl., Exh. 1. MC argues that the PCE traveled through the groundwater along a down-gradient pathway. Opposition at 20. Schutze noted that maintenance shops and storage areas formerly located near where PCE was discovered on WCM's property could be the source of the contaminant. Id. Schutze also estimated that the quantity of PCE present in the soil amounts to one to two gallons, which "is typical for residential applications such as carpet or fabric cleaning, automotive parts cleaning and HVAC equipment servicing." Id.

WCM counters that Schutze's conclusions are not supported by specific facts and moves to exclude his testimony under Daubert. MC presents no evidence that the groundwater beneath WMC is contaminated with PCE, let alone at concentrations significant enough to result in the substantially higher soil and groundwater contamination present on the MC property. However, the fact that the groundwater has not been tested on WCM's property does not mean that Schutze should not be heard to opine that the contamination travelled from WCM property via groundwater. Schutze reviewed soil and groundwater samples taken from the MC property and noted that the fact that PCE has been detected in the soil of the up-grad

Alexsei publishing date:
124