California ex rel. California Department of Toxic Substances Control v. Campbell

319 F.3d 1161
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 14, 2003
DocketNo. 01-16397
StatusPublished
Cited by2 cases

This text of 319 F.3d 1161 (California ex rel. California Department of Toxic Substances Control v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
California ex rel. California Department of Toxic Substances Control v. Campbell, 319 F.3d 1161 (9th Cir. 2003).

Opinion

OPINION

RICHARD S. ARNOLD, Circuit Judge.

This case arises out of contamination of groundwater in Chico, California, with the [1163]*1163chemical trichloroethylene (TCE). After extensive investigation, the State of California brought suit against appellants alleging that the land they owned1 was the source of the contamination. In an earlier summary judgment that was affirmed by this Court, they were found to be among those responsible for the pollution of the land. Appellants then brought a third-party complaint against Louisiana-Pacific Corporation (L-P) claiming that L-P had contributed to the contamination, so as to entitle appellants to partial indemnification. The District Court granted summary judgment in favor of L-P on the ground that there was insufficient evidence that TCE was ever released on L-P’s property. Appellants are before this Court arguing that they raised a genuine issue of material fact as to whether L-P was a source of the TCE contamination. We reverse the District Court’s grant of summary judgment, because, in our view, appellants did raise a genuine issue of material fact.

I.

In 1989, the California Department of Toxic Substances Control began investigating groundwater contamination in Chi-co, California. Over the course of the investigation, the Department discovered a large plume of TCE contamination. The plume ran from appellants’ property on the northeast to a neighborhood called Stanley Park on the southwest. L-P’s property was located right in the middle of the plume, and the greatest concentration of TCE in the groundwater was centered under L-P’s property. After substantial investigation, the Department concluded that appellants’ property was the source of the contamination. The Department further concluded that TCE was never released on L-P’s land.

The State brought suit to recoup investigation costs and to force appellants to take remedial action. In 1993, the State moved for summary judgment on the issue of appellants’ liability. The appellants opposed the motion, arguing that the evidence also tended to prove that L-P was the source of the contamination. L-P was not a party to the case at that time. The District Court entered summary judgment for the State, finding that appellants were jointly and severally liable for the contamination. This Court affirmed that decision, State of California v. Campbell, 138 F.3d 772 (9th Cir.1998), giving two grounds for its decision. First, we concluded that appellants had not raised a genuine issue of fact, stating: “no reasonable juror could conclude that the Louisiana Pacific Property, rather than [appellants’ property], was the source of the contamination at Stanley Park_” Id. at 781 (emphasis added). Second, we held that the claimed dispute was immaterial, because all that the State had to prove was that a discharge had occurred on appellants’ land. Id. at 781-82. We affirmed the summary judgment on liability and remanded the case for further proceedings, including proceedings to determine damages.

On remand, appellants brought L-P in as a third-party defendant, arguing that L-P had contributed to the TCE contamination, so it should bear part of the costs. In December of 1998, after additional discovery, L-P filed for summary judgment on the third-party complaint. L-P argued that the evidence conclusively proved that it had not released any TCE, and thus it could not be held liable.

[1164]*1164In ruling on the motion for summary judgment, the District Court was presented with numerous affidavits, various scientific study results attached to the experts’ affidavits, and numerous deposition transcripts of employees who used to work on L-P’s property when it was owned by Diamond International.2

L-P argued that an exhaustive investigation of its land conducted by its environmental consulting firm and overseen by the State had provided absolutely no physical evidence that it contributed to the TCE contamination. As part of this investigation, L-P’s environmental-response consultants took numerous soil samples and tested them for numerous chemical contaminants, including TCE. None of these samples tested positive for TCE. This led L-P and the State to conclude that L-P’s property was not the source of the TCE contamination, but that the TCE contamination under this property was caused by groundwater flow from appellants’ land. Numerous experts presented this conclusion and the information underlying it to the District Court through affidavits to support L-P’s motion for summary judgment.

Appellants countered with testimony of several individuals who worked for Diamond International. The most persuasive testimony was that of Sam Holmes, who worked for Diamond International between 1973 and 1975. Mr. Holmes testified that he worked one of the company’s offset printing presses, and that, at times, the company used TCE-based solvents to clean the print rollers. He testified that at least once a day the used solvents would be dumped directly onto the ground outside of the factory, estimating that between 10 and 25 gallons were dumped each day. L-P answered Mr. Holmes’s testimony by pointing out that he had shown the state investigators where he remembered the dumping pit was, yet the soil samples from that area, according to tests conducted by the State, did not contain TCE.

Appellants also presented the testimony of other employees who did not directly know that TCE had been dumped onto the ground, but whose testimony provided circumstantial corroboration of that fact. Numerous employees testified that Diamond International used solvents in other parts of its business. Other employees testified that used solvents were dumped directly onto the ground. Some recounted that the steam cleaner used solvents, and that the area used for steam cleaning drained directly into the ground. None of these other employees, however, could remember whether TCE was ever used.

Finally, appellants presented the affidavit of their own expert, Stephen Carlton. Mr. Carlton stated his conclusion that L-P was a source of TCE contamination. First, he noted that the highest concentration of TCE contamination occurred under L-P’s land, and that the contamination level had remained nearly constant between 1994 and 1997. He argued that the constant nature of the contamination plume disproved L-P’s argument that the TCE had migrated to its land through the groundwater flow from appellants’ land. Mr. Carlton argued that if the contamination of L-P’s land had been due to groundwater flow, the highest concentration of TCE contamination would have continued to move downgradient to the Stanley Park area. He thus concluded that part of the TCE contamination must have originated on L-P’s land. To support this conclusion, Mr. Carlton asserted that TCE was a commonly used chemical in the offset printing industry and in wax refining, and was also [1165]*1165commonly used to clean machine parts. Diamond International engaged in each of these activities on the property now owned by L-P. These facts lent circumstantial support to Mr. Carlton’s conclusion that L-P’s property had contributed to the contamination.

Mr. Carlton also answered L-P’s argument about the lack of physical evidence. He first asserted that there were physical findings. In testing the soil, L-P had found 1,1-dichloroethylene (1,1 DCE), which is one of the compounds into which TCE biodegrades. Mr.

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319 F.3d 1161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/california-ex-rel-california-department-of-toxic-substances-control-v-ca9-2003.