City of West Sacramento v. R & L Business Management

Opinion

1 2 3 4 5 6 7 10 ----oo0oo---- 11 12 CITY OF WEST SACRAMENTO, No. 2:18-CV-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 14 Plaintiff, MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR 15 v. RECONSIDERATION AND DEFENDANT’S MOTION TO STAY 16 R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a 17 STOCKTON PLATING, INC., d/b/a CAPITOL PLATING, INC., a/k/a 18 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 19 a dissolved California corporation; ESTATE OF GUS 20 MADSACK, DECEASED; ESTATE OF CHARLES A. SCHOTZ a/k/a SHOTTS, 21 DECEASED; ESTATE OF E. BIRNEY LELAND, DECEASED; ESTATE OF 22 FRANK E. ROSEN, DECEASED; ESTATE OF UNDINE F. ROSEN, DECEASED; DECEASED; RICHARD LELAND, an 24 individual; SHARON LELAND, an individual; ESTATE OF LINDA 25 SCHNEIDER, DECEASED; JUDY GUESS, an individual; JEFFREY A. LYON, 26 an individual; GRACE E. LYON, an individual; THE URBAN FARMBOX 27 LLC, a suspended California limited liability company; and 28 DOES 1-50, inclusive, 1 Defendants. 2

3 ----oo0oo---- 4 Plaintiffs City of West Sacramento, California (“the 5 City”) and the People of the State of California filed suit to 6 address toxic levels of soil and groundwater resulting from the 7 release of hazardous substances at a property once occupied by a 8 metal plating facility. Before the court are defendant R and L 9 Business Management’s (“R&L”) motion to stay the proceedings and 10 the City’s motion for reconsideration. (Docket Nos. 148, 145.) 11 I. Relevant Factual and Procedural Background 12 The City’s lawsuit involves the contamination at the 13 property located at 319 3rd Street in West Sacramento, California 14 (the “Site”). This court described much of the factual and 15 procedural background to this lawsuit in its prior orders. (See 16 Docket Nos. 18, 33, 44, 63, 115, & 125). This court granted the 17 City’s motion for partial summary judgment and found defendant 18 R&L liable under the Comprehensive Environmental Response, 19 Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 20 9613(f)(1). (Order at 10 (Docket No. 125).) The court then set a 21 date to determine the extent of defendant’s liability (the 22 “apportionment hearing”). (Docket No. 129.) The court also 23 denied partial summary judgment as to plaintiff’s claim under the 24 Resource Conservation Recovery Act (“RCRA”) §7002(a), 42 U.S.C. § 25 6972, finding that a genuine issue of material fact exists as to 26 whether the contamination at the Site presents an imminent and 27 substantial endangerment to health or the environment. (Order at 28 1 14-15.) 2 On May 6, 2020, the California Department of Toxic 3 Substances Control (“DTSC”) issued a final Imminent and 4 Substantial Endangerment Determination and Order and Remedial 5 Action Order (“ISE Order” or “the Order”) to defendant. (See 6 Stone Decl., at ¶ 2, Exh. 1 (“ISE Order”) (Docket No. 145).) The 7 Order names R&L, among other defendants, as responsible parties 8 pursuant to California Health and Safety Code § 25323.5. (See 9 id. § 2.1.) The ISE Order concludes that “[t]he actual and 10 threatened releases of hazardous substances at the Site may 11 present an imminent and substantial endangerment to the public 12 health or welfare or to the environment.” Id. at § 3.4. In 13 response to the Order, defendant R&L sent a letter to DTSC 14 stating that it “will not comply with the terms of the Order” 15 because the contamination at issue “was not caused by” R&L. (See 16 Stone Decl. at ¶ 2, Exh. 1 (Docket No. 152).) 17 R&L now moves to stay the proceedings pursuant to the 18 primary jurisdiction doctrine, arguing that that DTSC has now 19 invoked its authority by issuing the ISE Order. (Mot. to Stay at 20 1 (Docket No. 148).) Plaintiffs move for reconsideration of the 21 court’s finding that there is a triable issue of material fact as 22 to whether the hazardous waste contamination may present an 23 imminent and substantial endangerment to human health or the 24 environment, arguing that the DTSC’s Order constitutes “newly 25 discovered evidence.” (Mot. for Reconsideration at 4 (Docket No. 26 145).) 27 II. Motion to Stay 28 “The primary jurisdiction doctrine allows courts to 1 stay proceedings or to dismiss a complaint without prejudice 2 pending the resolution of an issue within the special competence 3 of an administrative agency.” Clark v. Time Warner Cable, 523 4 F.3d 1110, 1114–15 (9th Cir. 2008). Primary jurisdiction is a 5 “prudential” doctrine “under which a court determines that an 6 otherwise cognizable claim implicates technical and policy 7 questions that should be addressed in the first instance by the 8 agency with regulatory authority over the relevant industry 9 rather than by the judicial branch.” Id. at 1114 (9th Cir. 10 2008); Reid v. Johnson & Johnson, 780 F.3d 952, 966 (9th Cir. 11 2015). “[A]pplication of the doctrine is ‘committed to the sound 12 discretion of the court.’” Sciortino v. Pepsico, Inc., 108 F. 13 Supp. 3d 780, 811–12 (N.D. Cal. 2015) (quoting Syntek 14 Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th 15 Cir. 2002)). If primary jurisdiction does apply, the district 16 court should “refer” the issue to the relevant agency. Clark, 17 523 F.3d at 1115. In that case, “the court merely stays or 18 dismisses proceedings to allow the plaintiff to pursue 19 administrative remedies.” Id. 20 “No fixed formula exists for applying the doctrine of 21 primary jurisdiction.” Davel Commc’ns, Inc. v. Qwest Corp., 460 22 F.3d 1075, 1086 (9th Cir. 2006). Nevertheless, the Ninth Circuit 23 considers the following four factors in applying the doctrine: 24 “(1) [a] need to resolve an issue that (2) has been placed by 25 Congress within the jurisdiction of an administrative body having 26 regulatory authority (3) pursuant to a statute that subjects an 27 industry or activity to a comprehensive regulatory authority that 28 (4) requires expertise or uniformity in administration.” Clark, 1 523 F.3d at 1115 (quoting Syntek, 307 F.3d at 781); Davel, 460 2 F.3d at 1086–87 (quoting United States v. Gen. Dynamics Corp., 3 828 F.2d 1356, 1363 (9th Cir. 1987)). 4 Primary jurisdiction applies only in a “limited set of 5 circumstances.” Id. at 1114. Aside from these four factors, the 6 Ninth Circuit has provided helpful guidance for courts to 7 determine when the primary jurisdiction doctrine should and 8 should not apply. First, the Ninth Circuit has held that 9 “efficiency” is “the ‘deciding factor’” in whether primary 10 jurisdiction applies. Astiana v. Hain Celestial Grp., Inc., 783 11 F.3d 753, 760 (9th Cir. 2015); Reid, 780 F.3d at 967. “Courts 12 must . . . consider whether invoking primary jurisdiction would 13 needlessly delay the resolution of claims.” Astiana, 783 F.3d at 14 760 (citing Reid, 780 F.3d at 967–68 (9th Cir. 2015); United 15 States v. Philip Morris USA Inc., 686 F.3d 832, 838 (D.C. Cir. 16 2012) (“The primary jurisdiction doctrine is rooted in part in 17 judicial efficiency.”).) Primary jurisdiction is “not required,” 18 for example, “when a referral to the agency would significantly 19 postpone a ruling that a court is otherwise competent to make.” 20 Id. at 761 (citing Amalgamated Meat Cutters & Butcher Workmen of 21 N. Am., 381 U.S. 676, 686 (1965)). 22 Second, “[n]ot every case that implicates the expertise 23 of federal agencies warrants invocation of primary jurisdiction.” 24 Id. at 760–61. “[T]he doctrine is not designed to ‘secure expert 25 advice’ from agencies ‘every time a court is presented with an 26 issue conceivably within the agency’s ambit.’” Brown v. MCI 27 WorldCom Network Servs., 277 F.3d 1166, 1172 (9th Cir. 2002). It 28 is “[c]ommon sense,” for example, that “even when agency 1 expertise would be helpful, a court should not invoke primary 2 jurisdiction when the agency is aware of but has expressed no 3 interest in the subject matter of the litigation.” Id. 4 Instead, the primary jurisdiction doctrine is to be 5 used “only if a claim requires resolution of an issue of first 6 impression, or of a particularly complicated issue that Congress 7 has committed to a regulatory agency, and if protection of the 8 integrity of a regulatory scheme dictates preliminary resort to 9 the agency which administers the scheme.” Clark, 523 F.3d at 10 1114 (internal citations and quotations omitted) (quoting Brown, 11 277 F.3d at 1172). 12 For the following reasons, the court finds that the 13 primary jurisdiction doctrine does not apply in this case. At 14 the outset, plaintiff’s claims are not within the “limited set of 15 circumstances” identified by the Ninth Circuit where application 16 of the primary jurisdiction doctrine is proper because it neither 17 requires resolution of an issue of first impression, nor has 18 Congress committed issues relevant here to a regulatory agency. 19 See Clark, 523 F.3d at 1114. Appellate guidance exists on both 20 CERCLA apportionment, see, e.g., Burlington N. & Santa Fe Ry. Co. 21 v. United States, 556 U.S. 599 (2009), and RCRA’s imminent-and- 22 substantial-endangerment element, see, e.g., Simsbury-Avon 23 Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 24 209-215 (2d Cir. 2009); Interfaith Cmty. Org. v. Honeywell Int’l, 25 Inc., 399 F.3d 248, 258-265 (3d Cir. 2005). Further, the text of 26 the RCRA explicitly calls for federal action, 42 U.S.C. § 27 6901(a)(4) (“[T]he problems of waste disposal as set forth above 28 have become a matter national in scope and in concern and 1 necessitate Federal action.”), and broadly empowers “any person” 2 to file suit in federal district court, id. § 6972(a); see 3 Bennett v. Spear, 520 U.S. 154, 165 (1997) (interpreting “any 4 person” to grant standing “to the full extent permitted under 5 Article III”). The language in the RCRA plainly intended for 6 federal courts –- not state agencies –- to enforce the statute. 7 Accordingly, this action is not the kind of case that demands 8 application of the primary jurisdiction doctrine. 9 Defendant argues that application of the doctrine here 10 is necessary for uniformity in regulation because “[t]here is 11 already a conflict between the anticipated proceedings in this 12 litigation and what is contemplated by the ISE Order.” (Mot. to 13 Stay at 12.) Specifically, defendant points out that the court 14 has scheduled an apportionment hearing while the ISE Order does 15 not require such a hearing, and that the ISE Order calls for 16 further investigation, while the court has not. (Id.) The court 17 is unpersuaded that there is a true conflict. Defendant can 18 request an apportionment hearing with the DTSC if it so desires. 19 CERCLA “[does] not mandate ‘joint and several’ liability in every 20 case” and defendant can make the case that “apportionment is 21 proper.” See Burlington, 556 U.S. at 613. Further, defendant 22 concedes that the “ISE Order fully addresses the City’s claim for 23 injunctive relief.” (Mot. to Stay at 12.) To the extent that 24 the ISE Order imposes additional obligations, this court can 25 reduce the “likelihood of conflict” by “consider[ing] carefully 26 the agenc[y]’s previous and contemplated orders before it orders 27 any relief itself and [can] permit[] agency comment prior to 28 finalizing any order.” Wilson v. Amoco Corp., 989 F. Supp. 1159, 1 1170 (D. Wyo. 1998) (citing O’Leary v. Moyer's Landfill, Inc., 2 523 F. Supp. 659 (E.D. Pa. 1981)). Indeed, considering 3 defendant’s explicit reluctance to follow the ISE Order, “court 4 ordered relief might even be characterized as welcome” by the 5 DTSC. See id. 6 Next, defendant contends that the DTSC’s expertise 7 warrants application of the primary jurisdiction doctrine here. 8 (Mot. to Stay at 8-11.) Establishing that the agency has 9 expertise, however, does not suffice to apply the doctrine. It 10 will almost always be the case that the agency will have more 11 experience on issues of toxic substance control. The burden, 12 however, is on defendant to “show[] that courts in general lack 13 the competence to efficiently and effectively resolve the issue.” 14 Wilson, 989 F. Supp. at 1170; see also Astiana, 783 F.3d at 760 15 (emphasizing court competence). “[Q]uestions posed by RCRA . . . 16 are not so esoteric or complex as to foreclose their 17 consideration by the judiciary,” Wilson, 989 F. Supp. at 1170, 18 and defendant has not offered arguments to the contrary. 19 Finally, defendant argues that application of the 20 primary jurisdiction doctrine here is necessary for an efficient 21 resolution of the issues. (Mot. to Stay at 11.) The only 22 efficiency benefit defendant offers, however, relates to the 23 agency’s expertise, which the court already addressed above. 24 (See id. at 11 (“The Primary Jurisdiction Doctrine also allows 25 for the efficient resolution of technical questions of fact 26 through an agency’s specialized expertise.”).) 27 To the contrary, referral here would be inefficient 28 because it “would needlessly delay the resolution of claims.” 1 See Astiana, 783 F.3d at 760. This court has already found that 2 defendant is liable under CERCLA. (Docket No. 125.) 3 Nonetheless, defendant insists otherwise. (See Def.’s Reply at 4 3.) Defendant’s insistence that the agency should take over the 5 matter and simultaneous refusal to follow the agency’s Order 6 suggests that defendant’s push to refer this case is an attempt 7 to delay resolution of this matter or to relitigate issues this 8 court has already decided. Referral here therefore would 9 “significantly postpone a ruling” that this court has shown it is 10 competent to make. See Astiana, 783 F.3d at 761. Accordingly, 11 application of the primary jurisdiction doctrine is “not 12 required.” See id. Considering that efficiency is “the 13 ‘deciding factor’” in whether primary jurisdiction applies, 14 Astiana, 783 F.3d at 760, the court will deny defendant’s motion 15 to stay. 16 III. Motion for Reconsideration 17 “The Federal Rules of Civil Procedure do not expressly 18 provide for motions for reconsideration.” Bryant v. Baires, No. 19 CIV. 08-1165MJL(PCL), 2010 WL 1225119, at *1 (E.D. Cal. Mar. 29, 20 2010)). “However, Local Rule 78–230(k) does provide for 21 applications for reconsideration.” Id. A motion for 22 reconsideration must include, in part, “what new or different 23 facts or circumstances are claimed to exist which did not exist 24 or were not shown upon such prior motion, or what other grounds 25 exist for the motion.” Id. 26 “Relief from judgment on the basis of newly discovered 27 evidence is warranted if (1) the moving party can show the 28 evidence relied on in fact constitutes ‘newly discovered 1 evidence’ within the meaning of [Federal Rule of Civil Procedure] 2 60(b)(2); (2) the moving party exercised due diligence to 3 discover this evidence; and (3) the newly discovered evidence 4 [is] of ‘such magnitude that production of it earlier would have 5 been likely to change the disposition of the case.’” Feature 6 Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 7 2003) (quoting Coastal Transfer Co. v. Toyota Motor Sales, 8 U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)). 9 In its Order granting the City’s motion for partial 10 summary judgment, the only issue before the court on plaintiff’s 11 RCRA claim was whether the Site presented an imminent and 12 substantial endangerment to health or the environment. (Order at 13 11.) The court denied partial summary judgment because the 14 DTSC’s refusal to issue a previous draft of the ISE Order 15 “compete[d] with Dr. [Ann] Farr’s conclusion that the level of 16 contamination does pose” the requisite threat, and because the 17 testimony of plaintiff’s expert, Dr. Farr, as it stood, was alone 18 insufficient to establish that the Site presents an imminent and 19 substantial endangerment to health as a matter of law. (Order at 20 14.) Specifically, Dr. Farr concluded that the Site posed such a 21 threat based solely on the fact that the levels of contamination 22 exceed California regulatory thresholds. (Id. at 14-15.) 23 Further, Dr. Farr did not provide evidence on the full extent of 24 the contamination and could not conclude that anyone would 25 “realistically” be exposed to the contamination. (Id. (citing 26 Simsbury-Avon Preservation Club, Inc. v. Metacon Gun Club, Inc., 27 575 F.3d 199 (2d Cir. 2009).) 28 The ISE Order does not constitute newly discovered 1 evidence. The Order is far less detailed than Dr. Farr’s input. 2 The Order states that 1,2-DCA, chromium, copper, nickel, and lead 3 have been found at the site (ISE Order ¶ 2.5), which the court 4 already knew (Order at 3). Based on the concentrations of these 5 chemicals, like Dr. Farr, the Order immediately concludes that 6 “the Site represents an unacceptable risk to public health and to 7 the groundwater resource.” (Id. § 2.7.) As to exposure, the 8 Order states only that the “levels of metals identified . . . in 9 surface and near surface soil . . . represent a direct contact 10 exposure route.” (Id. § 2.6.) Dr. Farr, however, had already 11 identified soil contamination as a possible route of exposure. 12 (Order at 5.) Therefore, neither of these factual findings 13 represent information previously unknown to the court. 14 More importantly, the DTSC’s Order would not have 15 changed the court’s conclusion. Although the DTSC’s recent 16 issuance of the ISE Order resolves the court’s issue with the 17 DTSC’s “refusal to conclude that the contamination may pose an 18 imminent and substantial danger” (Order at 14), it does not 19 resolve the issues with respect to the insufficiency of Dr. 20 Farr’s testimony. The mere statement of concentration levels, 21 without more, “provides an insufficient basis for a jury to find 22 a reasonable prospect of future harm that is both ‘near-term and 23 . . . potentially serious.’” See Simsbury-Avon, 575 F.3d at 212 24 (citing Maine People’s All. And Nat. Res. Def. Council v. 25 Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006)). Further, 26 the description of exposure routes is too conclusory for the 27 court to determine that the “pathways of exposure” are 28 “realistic.” (Id. at 213; ISE Order § 2.6 (“Routes of Exposure. £.40°UV SIUV VV DWE BP MVVUPTIOCII AVS PRU Yi PAY te VI Ae

1 | Elevated levels of metals identified in surface and near surface 2 soil samples on the property represent a direct contact exposure 3 route.”).) Dr. Farr’s testimony and the ISE Order, jointly, are 4 insufficient for the court to find that the Site presents an 5 imminent and substantial endangerment to health or the 6 environment as a matter of law. The ISE Order therefore would 7 not have changed the disposition of the case. See Feature 8 Realty, 331 F.3d at 1093. For these reasons, the court will deny 9 | plaintiff’s motion for reconsideration. 10 IT IS THEREFORE ORDERED that defendant’s motion to stay 11 (Docket No. 148) be, and the same hereby is, DENIED. 12 IT IS FURTHER ORDERED that plaintiffs’ motion for 13 reconsideration (Docket No. 145) be, and the same hereby is, 15 | Dated: July 17, 2020 tleom ah. A. be—~ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12