City of West Sacramento v. R & L Business Management

Opinion

1 2 3 4 5 6 7 8 11 ----oo0oo---- 12 13 CITY OF WEST SACRAMENTO, No. 2:18-cv-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE 15 Plaintiffs, MEMORANDUM AND ORDER RE: THIRD-PARTY DEFENDANT YOLO 16 v. COUNTY’S MOTION FOR SUMMARY JUDGMENT 17 R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a 18 STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a 19 CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., 20 a dissolved California corporation; et al., 21 Defendants. 22

23 ----oo0oo---- 24 Plaintiffs City of West Sacramento, California and the 25 People of the State of California (collectively, “the City”) 26 brought this action to address toxic levels of soil and 27 groundwater resulting from the release of hazardous substances at 28 1 a property once occupied by a metal plating facility at 319 3rd 2 Street, West Sacramento, California. (See Third Am. Compl. 3 (“TAC”) (Docket No. 45).) The City sued a number of defendants 4 under the Comprehensive Environmental Response, Compensation, and 5 Liability Act (“CERCLA”) section 107(a), 42 U.S.C. § 9607(a), as 6 well as other state and federal statutes, to recover the response 7 costs associated with cleaning up the hazardous substances. (See 8 generally id.) 9 Two of the defendants, R and L Business Management and 10 John Clark (collectively, “R&L”), have brought a single third- 11 party claim against the County of Yolo (“Yolo County”) for 12 contribution under CERCLA § 113(f)(1). (See Am. Third-Party 13 Compl. (“Am. Third-Party Compl.”) (Docket No. 116).) Yolo County 14 has filed a motion for summary judgment on that third-party 15 claim. (See Cty. of Yolo’s Mem. P. & A. (“County’s MPA”) (Docket 16 No. 207-1).) 17 The parties’ dispute centers around the presence and 18 source of lead contamination at 319 3rd Street. (See id.; see 19 Defs.’ Opp’n to Cty. of Yolo’s Mot. Summ. J. (“Defs.’ Opp’n”) 20 (Docket No. 213).) Yolo County argues that no genuine issue of 21 material fact exists because R&L cannot produce evidence showing 22 that Yolo County ever disposed of any lead and, even if it could, 23 lead is not a contaminant for which the City is seeking recovery 24 under CERCLA in its underlying action against R&L. (See County’s 25 MPA; Cty. of Yolo’s Reply at 5-8.) R&L argues that evidence in 26 the record could allow a reasonable trier of fact to conclude 27 that lead that was released by Yolo County was deposited or 28 migrated onto 319 3rd Street and that this lead will cause R&L to 1 incur response costs in its underlying action with the City. 2 (See Defs.’ Opp’n.) 3 I. Factual and Procedural Background 4 The parcel that forms the basis of the City’s lawsuit 5 against R&L is located at 319 3rd Street in West Sacramento, 6 California. (See TAC ¶ 4.) The City’s TAC alleges that R&L owns 7 the property at 319 3rd Street and formerly operated the 8 electroplating business that operated there between 1973 and 9 1985. (TAC ¶¶ 14, 18.) The TAC alleges that contaminants 10 including nickel, copper, zinc, chromium, and volatile organic 11 compounds including 1,2 DCA that originated from the 12 electroplating business on the parcel have migrated and are 13 migrating in the soil and groundwater to areas beyond the 14 property line, creating “an ever-growing plume of contamination” 15 (the “319 Site”). (See TAC ¶¶ 14, 18, 57-58.) The TAC seeks to 16 hold the third-party plaintiffs liable for necessary response 17 costs and cleanup of this contamination. (See id.) 18 Yolo County has never owned 319 3rd Street or been 19 involved in operations there. (See Decl. of J. Hartman King 20 (“Hartman King Decl.”), Ex. A, B, C, (Docket No. 207-5).)) From 21 at least 1914 until 1987, Yolo County owned two parcels North of 22 319 3rd Street: 305 3rd Street, which sits at the corner of 3rd 23 Street and C Street, and a single parcel spanning two street 24 addresses on C Street, 221/225 C Street (collectively, the 25 “Former County Properties”). (Id.) In 1987, Yolo County 26 conveyed the Former County Properties to the Redevelopment Agency 27 of the City of West Sacramento via quitclaim deed. (Hartman King 28 Decl., Ex. B.) 1 Yolo County constructed three buildings on the Former 2 County Properties during its period of ownership: a town hall in 3 1915, an office building in 1956, and a jail in 1957. (See Decl. 4 of Ryan Matthews (“Matthews Decl.”), Exs. A, B, C (Docket No. 5 213-3, 213-4, 213-5, 213-6).) Contracts signed by Yolo County 6 for the construction of all three of these buildings called for 7 the use of lead paint. (See id.) These three buildings have all 8 been demolished, and the Former County Properties are currently 9 used by the City of West Sacramento as a public parking lot. 10 (See Hartman King Decl., Ex. C, Expert Rebuttal Report of Joseph 11 Turner at 9 (“Turner Report”) (Docket No. 207-5).) 12 Another parcel, 317 3rd Street (“the Firehouse 13 Property”), lies between the Former County Properties and 319 3rd 14 Street. (See Turner Report at Ex. 2.) The Firehouse Property 15 houses the “Washington Firehouse” building and was owned by local 16 fire districts until 1987. (See Hartman King Decl. ¶6; Am. 17 Third-Party Compl. ¶ 12.) The Washington Firehouse still stands 18 on the property, which is currently owned by ECO Green, LLC. 19 (Id.) 20 Over the past several decades, a number of 21 environmental consultants and the California Department of Toxic 22 Substances Control (“DTSC”) have conducted investigations of the 23 319 Site and surrounding properties. (See Matthews Decl., Ex. D, 24 Expert Report of Dr. Adam Love at 12-13 (“Love Report”) (Docket 25 No. 213-8).) One such investigation was conducted by Wallace and 26 Kuhl Associates (“WKA”) in 2007. (See Hartman King Decl., Ex. D, 27 Wallace & Kuhl Assocs. Report (2007) (“WKA Report”) (Docket No. 28 207-5).) WKA collected 75 soil samples at 25 locations at the 1 Former County Properties and the Firehouse Property, and found 2 that 23 of the samples exceeded regulatory criteria for lead. 3 (Id.) WKA’s report notes that a prior investigation, conducted 4 by URS Corporation in 2004, had also detected a high 5 concentration of lead in a composite sample taken “on the 6 northeast portion” of the properties. (See id. at 14.) WKA also 7 found ceramic shards, brick, nails, and bone material beneath the 8 asphalt paving on portions of the properties, “possibly 9 suggesting that fill material is present onsite.” (See id.) 10 Based largely on information in the WKA Report, on July 11 22, 2019, the third-party plaintiffs filed a third-party 12 complaint against Yolo County and ECO Green, LLC, for 13 contribution pursuant to 42 U.S.C. § 9613(f)(1), equitable 14 indemnify, equitable contribution, and declaratory relief. (See 15 Third-Party Complaint (“Third-Party Compl.”) (Docket No. 90).) 16 The Third-Party Complaint alleged that “lead and other toxic 17 chemicals were discharged” from 305 3rd Street and 317 3rd Street 18 “onto and into the soil” beneath those parcels. (See id. at 19 ¶ 23.) On October 28, 2019, the court dismissed all four of 20 R&L’s claims without prejudice because R&L did not seek to hold 21 Yolo County liable for the contamination at issue in the City’s 22 TAC.1 (See Docket No. 115.) 23 1 Specifically, the court dismissed R&L’s claim for 24 contribution under CERCLA section 113(f)(1) because R&L’s claim stemmed only from alleged lead contamination at 305 3rd Street, 25 whereas the City’s underlying TAC sought damages for the release of nickel, copper, zinc, chromium, and 1,2 DCA at 319 3rd Street. 26 (See Docket No. 115.) Because R&L did not seek to hold Yolo 27 County liable for the contamination at issue in the City’s TAC, the court held that the third-party plaintiffs could not maintain 28 their contribution claim against Yolo County. (See id.) 1 The third-party plaintiffs proceeded to file an amended 2 third-party complaint seeking only contribution under CERCLA 3 section 113(f) against Yolo County and ECO Green, LLC.2 (See Am. 4 Third-Party Compl.) The Amended Third-Party Complaint added 5 allegations that Yolo County owned the property “generally 6 located” at 305 3rd Street, that other toxic chemicals, including 7 zinc, cadmium, and chromium, “were discharged onto and into the 8 soil” at the County property and the Firehouse Property, and that 9 “historic fill material” containing “heavy metals . . . including 10 . . . zinc, cadmium, chromium, and lead” was imported, dumped, 11 released, and/or spread from the County property and the 12 Firehouse Property onto other properties, including 319 3rd 13 Street. (See Am. Third-Party Compl. ¶¶ 38, 44.) The Amended 14 Third-Party Complaint also alleges that releases of fill material 15 from the County property and the Firehouse Property contained 16 contaminants that had commingled with contaminants at 319 3rd 17 Street. (See id.) Subsequently, the court denied Yolo County’s 18 Motion to Dismiss, holding that R&L’s additional allegations had 19 remedied the issues that led the court to dismiss their third- 20 party complaint. (See Docket No. 136.) 21 After the third-party plaintiffs filed their Amended 22

23 2 Shortly thereafter, ECO Green, LLC and the City reached an agreement for the settlement of all claims and disputes 24 between them in this matter on or about June 22, 2020. (Order re Mot. for Determination of Good Faith Settlement at 2 (Docket No. 25 174).) The court approved the parties’ settlement, finding it to be “procedurally and substantively fair, reasonable, and 26 consistent with CERCLA’s objectives,” and dismissed R&L’s Amended 27 Third-Party Complaint as to ECO Green, LLC with prejudice. (See id.) 28 1 Third-Party Complaint, the court granted the City’s Motion for 2 Summary Judgment against R&L, holding that R&L is liable for the 3 contamination at the 319 Site under CERCLA section 107(a). (See 4 Docket No. 125.) The court then denied R&L’s request for 5 divisibility, holding that it is jointly and severally liability 6 for the CERCLA violations that have occurred at the 319 Site. 7 (See Mem. & Order re Defs.’ Divisibility Defense at 28 8 (“Divisibility Order”) (Docket No. 203).) 9 II. Legal Standard 10 Summary judgment is proper “if the movant shows that 11 there is no genuine dispute as to any material fact and the 12 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 13 P. 56(a). “By its very terms, this standard provides that the 14 mere existence of some alleged factual dispute between the 15 parties will not defeat an otherwise properly supported motion 16 for summary judgment; the requirement is that there be no genuine 17 issue of material fact. Anderson v. Liberty Lobby, Inc., 477 18 U.S. 242, 248 (1986) (emphasis in original). A “material” fact 19 is “one that might affect the outcome of the suit under the 20 governing law,” while a “genuine” issue is one where the 21 “evidence is such that a reasonable jury could return a verdict 22 for the nonmoving party.” Id. 23 The party moving for summary judgment bears the initial 24 burden of establishing the absence of a genuine issue of material 25 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 26 moving party can satisfy this burden by (1) presenting evidence 27 that negates an essential element of the non-moving party’s case 28 or (2) demonstrating that the non-moving party cannot provide 1 evidence to support an essential element upon which it will bear 2 the burden of proof at trial. Id. at 322-23. If the movant can 3 satisfy this initial burden, the burden then shifts to the non- 4 moving party to produce specific facts beyond the pleadings to 5 show the existence of genuine disputes of material fact. 6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 7 586-87 (1986). Any inferences drawn from the underlying facts 8 must be viewed in the light most favorable to the party opposing 9 the motion. Id. at 587. 10 III. Discussion 11 CERCLA Section 113(f)(1) allows a party to “seek 12 contribution from any other person who is liable or potentially 13 liable under Section 107(a), during or following any civil action 14 under section 106 of this title or under section 107(a) of this 15 title.” 42 U.S.C. § 9613(f)(1). A party may assert a 16 contribution claim only “during or following” a civil action 17 under CERCLA section 106 or 107(a) to which they are a party. 18 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 168 19 (2004). If a private party has not been sued, the party cannot 20 obtain contribution under section 113(f)(1). Id. 21 Here, the third-party plaintiffs are parties to an 22 action brought against them by the City under CERCLA section 23 107(a). (See generally TAC; Def. John Clark’s Answer to TAC 24 (Docket No. 48); Def. R&L’s Answer to TAC (Docket No. 49).) They 25 are therefore authorized under CERCLA section 113(f)(1) to seek 26 contribution from “any other person who is liable or potentially 27 liable under section 107(a).” 42 U.S.C. § 9613(f)(1). 28 To establish Yolo County’s liability or potential 1 liability under CERCLA section 107(a), the third-party plaintiffs 2 must satisfy four elements: “(1) the site on which the hazardous 3 substances are contained is a ‘facility’ under CERCLA's 4 definition of that term; (2) a ‘release’ or ‘threatened release’ 5 of any ‘hazardous substance’ from the facility has occurred; (3) 6 such ‘release’ or ‘threatened release’ has caused the plaintiff 7 to incur response costs that were ‘necessary’ and ‘consistent 8 with the national contingency plan,’; and (4) the defendant is 9 within one of four classes of persons subject to the liability 10 provisions of Section 107(a).” Carson Harbor Vill., Ltd. v. 11 Unocal Corp., 270 F.3d 863, 870–71 (9th Cir. 2001) (internal 12 citations omitted) (quoting 3550 Sevens Creek Assocs. v. Barclays 13 Bank of Cal., 915 F.2d 1355, 1358 (9th Cir. 1990)). Here, the 14 third-party plaintiffs seek to hold Yolo County liable as the 15 second “class[] of person” set out in section 107(a): “any person 16 who owned or operated a facility at the time the hazardous 17 substances were disposed of.” 42 U.S.C. § 9607(a). 18 The Supreme Court has made clear that a contribution 19 action under section 113(f)(1) may only follow from an action 20 under section 107(a). See Aviall, 543 U.S. at 168. The third 21 element set out in Carson Harbor therefore requires the third- 22 party plaintiffs to show that the release or threatened release 23 of hazardous materials by Yolo County for which they seek 24 contribution must be one that will “cause[] [them] to incur 25 response costs” in the underlying section 107(a) action brought 26 against the them by the City. See id.; Carson Harbor, 270 F.3d 27 at 870–71. 28 Yolo County does not appear to dispute that the Former 1 County Properties or the buildings formerly on them fall under 2 CERCLA’s broad definition of “facility.” See 42 U.S.C. § 9601(9) 3 (defining facility as “any building, structure, installation . . 4 . or any site or area where a hazardous substance has been 5 deposited, stored, disposed of, or placed . . . .”). Therefore, 6 only the second, third, and fourth Carson Harbor elements are at 7 issue. See Carson Harbor, 270 F.3d at 870-71. 8 Yolo County first argues that the third-party 9 plaintiffs cannot carry their burden of showing that a genuine 10 issue of material fact exists under the second and fourth 11 elements set out in Carson Harbor: whether a “release” or 12 “threatened release” of any “hazardous substance” occurred from 13 the Former County Properties during Yolo County’s ownership. 14 (See County’s MPA at 9-11.) Second, Yolo County argues that, 15 even assuming the existence of such releases, the third-party 16 plaintiffs cannot establish a genuine issue of material fact as 17 to the third element set out in Carson Harbor: whether those 18 releases of hazardous substances will cause the third-party 19 plaintiffs to incur response costs in the underlying section 20 107(a) action brought against them by the City. (See County’s 21 MPA at 11-14.) 22 For the reasons that follow, the court rejects Yolo 23 County’s arguments and finds that R&L has met its burden of 24 establishing genuine issues of material fact as to each element 25 of CERCLA section 107(a) liability and thus for its claim for 26 contribution under CERCLA section 113(f)(1). See Aviall, 543 27 U.S. at 168. 28 A. Whether a Genuine Issue of Fact Exists as to the Second 1 and Fourth Elements of Section 107(a) Liability 2 To establish the second and fourth elements of section 3 107(a) liability, R&L must show that a “release” or “threatened 4 release” of a “hazardous substance” occurred from the Former 5 County Properties or buildings on those properties during the 6 period of Yolo County’s ownership. See Carson Harbor, 270 F.3d 7 at 870-71. CERCLA defines the term “release” broadly, as any 8 “spilling, leaking, pumping, pouring, emitting, emptying, 9 discharging, injecting, escaping, leaching, dumping, or disposing 10 into the environment.” 42 U.S.C. § 9601(22). 11 The only “hazardous substance” that R&L argues has been 12 released onto or from the Former County Properties is lead. (See 13 Defs.’ Opp’n at 4-5.) See 40 C.F.R. § 302.4 (listing lead as a 14 “hazardous substance” under CERCLA). Record evidence reveals 15 that lead has been detected in soil at the Former County 16 Properties during prior investigations by environmental 17 consultants. (See Matthews Decl., Ex. D, Expert Report of Dr. 18 Adam Love at 10-11 (“Love Report”) (Docket No. 213-8).) In 2007, 19 WKA detected lead in concentrations that exceeded regulatory 20 criteria in 23 soil samples taken at the Firehouse Property and 21 the Former County Properties. (See WKA Report at 14.) WKA noted 22 in its report that previous investigations had revealed high 23 concentrations of lead in a composite sample taken “on the 24 northeast portion” of the sampling area, which would be on or 25 near 221/225 C Street, the northeastern-most Former County 26 Property. (See id.) 27 Yolo County does not dispute that prior investigations 28 1 have revealed the presence of lead “on the eastern edge of 2 221/225 C Street,” one of the Former County Properties. (See 3 County’s Statement of Uncontroverted Facts ¶ 15 (“SUF”) (Docket 4 No. 207-2).) Rather, Yolo County argues that there is no 5 evidence in the record that shows that any of this lead was 6 released onto or from the Former County Properties during the 7 period of Yolo County’s ownership. (See County’s MPA at 9.) 8 Yolo County cites the report of its rebuttal expert, Joseph 9 Turner, which concludes that the record “does not contain any 10 evidence that Yolo County placed any lead-impacted soil on any of 11 the [F]ormer County [P]roperties or that any other disposal of 12 hazardous substances occurred on these properties” while Yolo 13 County was the owner. (See Turner Report at 10-11.) Yolo County 14 also points to deposition testimony of the City’s expert, Dr. 15 Anne Farr, R&L’s expert, Dr. Adam Love, and R&L’s Rule 30(b)(6) 16 witnesses, Richard Leland and John Clark, all of whom testified 17 that they were not aware of any instances in which Yolo County 18 had placed hazardous substances or fill material containing lead 19 on any of the Former County Properties. (See Hartman King Decl., 20 Ex. G, Farr Dep. 174:17-176:9; Ex. H, Love Dep. 237:1-17, 247:1- 21 21 (Docket No. 207-5); Decl. of Alanna C. Lungren (“Lungren 22 Decl.”), Ex. A, Clark Dep. 62:4-19; Ex. B, Leland Dep. 33:12-16 23 (Docket No. 207-6).) 24 However, Yolo County’s evidence merely shows that there 25 is no direct evidence in the record of specific or discreet 26 releases of hazardous substances onto or from the Former County 27 Properties during the period of Yolo County’s ownership. “CERCLA 28 liability may be inferred from the totality of the circumstances; 1 it need not be proven by direct evidence.” Tosco Co. v. Koch 2 Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000) (citing United 3 States v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1231-32 (6th 4 Cir. 1996)). Here, the third-party plaintiffs have produced 5 sufficient circumstantial evidence, discussed below, to create a 6 genuine issue of material fact as to whether releases of lead 7 occurred from the Former County Properties during Yolo County’s 8 ownership. See Anderson, 477 U.S. at 248. 9 Specifically, documentary evidence shows that lead 10 paint was used in the construction of three buildings on the 11 Former County Properties during the period of Yolo County’s 12 ownership. See Matthews Decl., Ex. A (“The exterior of said town 13 hall shall be painted with two coats of white lead mixed with 14 boiled linseed oil.”); Ex. B (“Primer coat [for the office 15 building] . . . shall be mixed in the proportions of 60% pigment 16 to 40% vehicle . . . . The pigment shall be composed of 80% white 17 lead and 20% zinc oxide . . . . The finish coat . . . shall be 18 mixed in the proportions of 66% pigment and 34% vehicle . . . . 19 Pigment shall be composed of 35% titanium oxide, 45% white lead, 20 and 20% zin oxide.”); Ex. C (“Interior work [for jail building]: 21 Wood and Metal: Apply one coat of lead and oil based primer 22 followed by two coats of 100% pure prepared, highest grade 23 exterior paint as manufactured by W.P Fuller, Pittsburg, National 24 Lead . . . .”).) 25 Based on these records, R&L’s expert, Dr. Love, states 26 that “lead-based paint from the County-owned building [sic] 27 represents the only documented source of lead to soil in the 28 vicinity to [319 3rd Street] that could have resulted in the 1 observed soil concentrations above the commercial/industrial soil 2 screening levels for lead of 320 milligram per kilogram soil.” 3 (See Decl. of Dr. Adam Love ¶ 7 (“Love Decl.”) (Docket No. 213- 4 7).) As Dr. Love explains in his declaration, environmental 5 impacts “are typically greater in the spatial extent near to the 6 source of contamination.” Id. ¶ 8. Because the observed lead 7 impacts to soil from prior investigations “have greater spatial 8 extent on the County owned-properties [sic] compared to” 319 3rd 9 Street, Dr. Love concludes that the three County buildings 10 constructed during Yolo County’s ownership represent the only 11 known source that could explain the levels of lead observed at 12 the 319 Site. (See id. ¶¶ 7-10.) 13 Based on this evidence--that Yolo County used lead- 14 based paint in three separate construction projects at the Former 15 County Properties while it owned them, and that lead-based paint 16 is the only documented source of lead in the vicinity of the 17 Former County Properties that could have resulted in the observed 18 concentrations of lead on or near the properties--a jury could 19 reasonably infer that lead was “discharged,” “escaped,” 20 “leached,” was “dumped,” or was “disposed” from the Former County 21 Properties or the buildings on them during construction or during 22 the several decades that Yolo County owned the properties. See 23 Carson Harbor, 270 F.3d at 870–71; Matsushita, 475 U.S. at 586-87 24 (“on summary judgment the inferences to be drawn from the 25 underlying facts . . . must be viewed in the light most favorable 26 to the party opposing the motion”). The court therefore finds 27 that a genuine issue of material fact exists as to the second and 28 fourth elements of section 107(a) liability. See Matsushita, 475 1 U.S. at 586-87. 2 B. Whether a Genuine Issue of Fact Exists as to the Third Element of Section 107(a) Liability 3 4 To establish the third element of section 107(a) 5 liability, R&L must show that the release of hazardous materials 6 by Yolo County for which R&L seeks contribution must be one that 7 will “cause[] [it] to incur response costs” in the underlying 8 section 107(a) action brought against R&L by the City. See 9 Aviall, 543 U.S. at 168; Carson Harbor, 270 F.3d at 870–71. 10 Yolo County argues that, because R&L only offers 11 evidence related to releases of lead, and no other hazardous 12 substance, its claim for contribution must fail as a matter of 13 law. (See Cty. of Yolo’s Reply at 5-8.) Yolo County contends 14 that the court dismissed R&L’s original third-party complaint 15 because it concerned only lead. (See id.) Though the Amended 16 Third-Party Complaint survived Yolo County’s Motion to Dismiss, 17 Yolo County argues it was only because the Amended Third-Party 18 Complaint added allegations that other metals contained in the 19 City’s TAC were released from the Former County Properties. 20 Under Yolo County’s theory, summary judgment is now appropriate 21 because the third-party plaintiffs do not offer any evidence of 22 such releases. (See id.) 23 The inquiry under the third element of section 107(a) 24 liability in a contribution action, however, is not whether the 25 third-party plaintiffs seek contribution strictly for releases of 26 the same contaminants as the City’s TAC--it is whether the third- 27 party plaintiffs seek contribution for releases that will cause 28 them to incur response costs in the City’s section 107 action. 1 See Aviall, 543 U.S. at 168. As the court observed when it 2 denied Yolo County’s Motion to Dismiss the Amended Third-Party 3 Complaint, because the Amended Third-Party Complaint alleges that 4 contaminants originating from the Former County Properties are 5 commingled at the 319 Site, “on a purely practical level, the 6 court cannot infer that the City will clean only the 7 contamination that originated at 319 Third Street.” (See Order 8 re Mot. to Dismiss Am. Third-Party Compl. (Docket No. 136).) 9 That observation applies with even more force now, 10 given that the court has subsequently found that R&L’s 11 contributions to the pollution present at the 319 Site are not 12 divisible from the total harm present at the Site, including harm 13 caused by elevated levels of lead. (See Divisibility Order at 14 18-19, 27.) Because the third-party plaintiffs allege--and 15 provide evidence--that the Former County Properties are a source 16 of the lead currently found at the 319 Site, “if the City is 17 successful, R&L will undoubtedly have to reimburse the City for 18 the cost of cleaning whatever hazardous contamination is 19 currently at the 319 property, not just that which originated 20 there.” (See Order re Mot. to Dismiss Amended Third-Party 21 Complaint at 6.) 22 Based on the evidence the parties have presented, the 23 court finds that a genuine issue of material fact exists as to 24 whether Yolo County’s releases of lead will cause the third-party 25 plaintiffs to incur response costs. See Matsushita, 475 U.S. at 26 586-87. In their expert reports, both Dr. Love and Dr. Farr 27 conclude that lead is present at the 319 Site at concentrations 28 that will require remediation, and that it is commingled with 1 other contaminants in the soil. (See Love Report at 23; Hartman- 2 King Decl., Ex. E, Rebuttal Expert Report of Dr. Anne Farr at 3-4 3 (“Farr Rebuttal Report”) (Docket No. 207-5).) In his report, Dr. 4 Love further concludes that source of lead at the 319 Site is a 5 layer of historic fill material upon which the Site was 6 developed. (See Love Report at 20.) Similar fill material has 7 been documented in prior investigations of the Former County 8 Properties and the Firehouse Property. (Love Report at 10-11; 9 WKA Report at 14.) 10 Dr. Love explains that historic fill, which is 11 generally imported to a site to raise topographic elevation, may 12 include construction debris. (See Love Report at 10.) 13 Consistent with his explanation, prior investigations of the 14 Former County Properties and the Firehouse Property discovered 15 ceramic shards, brick, and nails in the shallow soil. (See WKA 16 Report at 14.) 17 Citing records associated with Yolo County’s 18 construction of the town hall, jail, and office building on the 19 Former County Properties, as well as soil samples that show lead 20 impacts with greater “spatial extent” closer to the Former County 21 Properties, Dr. Love concludes in his declaration that “lead- 22 based paint from the County-owned building [sic] represents the 23 only documented source of lead to soil in the vicinity to [319 24 3rd Street] that could have resulted in the observed soil 25 concentrations above the commercial/industrial soil screening 26 levels for lead of 320 milligram per kilogram soil.” 27 Yolo County’s rebuttal expert, Joseph Turner, disputes 28 this conclusion, asserting in his report that the highest 1 reported lead concentrations in soil are located at the 319 Site 2 and that the use of lead anodes in chromium plating solution by 3 the third-party plaintiffs represents the most likely source of 4 lead contamination at the 319 Site. (See Turner Report at 6.) 5 Dr. Farr also concludes that the highest concentration of lead 6 was detected in the southern portion of the 319 Site, but she 7 acknowledges that elevated lead concentrations detected by WKA 8 represent another “primary” source area of lead at the 319 Site. 9 (See Farr Report at 3-4.) At the summary judgment stage, it is 10 not the court’s task to weigh the credibility of each party’s 11 expert in order to resolve conflicting testimony or evidence. 12 See Celotex, 477 U.S. at 323-24. Rather, the presence of 13 conflicting expert testimony as to the source of lead observed at 14 the 319 Site suggests there is a disputed issue of material fact. 15 See id. 16 Yolo County also argues that the court previously 17 rejected Dr. Love’s conclusion in its order denying R&L’s 18 divisibility defense. Yolo County quotes a portion of the order 19 where the court states “Dr. Love’s assumption that all lead at 20 the [319 Site] must originate with fill material is not based on 21 site-specific data.” (See County of Yolo’s Reply at 8.) 22 However, Yolo County’s reliance on the court’s divisibility order 23 is misplaced for two reasons. First, the conclusions in Dr. 24 Love’s declaration appear to be based in part on evidence that he 25 did not consider in his expert report and that were not before 26 the court in the divisibility hearing, namely the records 27 associated with past construction at the Former County 28 Properties. (See Love Decl. ¶¶ 3-4.) 1 Second, in the divisibility order, the court’s finding 2 that Dr. Love fell short of proving that all lead at the 319 Site 3 must have originated from fill material was made in the context 4 of determining whether R&L’s contributions to the pollution at 5 the 319 Site could be divided from the total harm done to the 319 6 Site. (See Divisibility Order at 8.) The bar to establish a 7 divisibility defense is much higher than the bar to establish a 8 triable issue of material fact. See Pakootas, 905 F.3d at 598 9 (describing the burden of proof in a divisibility claim as 10 “‘substantial’ because the divisibility analysis is ‘intensely 11 factual’”). The court’s divisibility order therefore does not 12 prevent it from concluding that Dr. Love’s conclusions are based 13 on adequate data to establish a genuine dispute of material fact 14 at the summary judgment stage. See Celotex, 477 U.S. at 323-24.3 15 Because Dr. Love concludes that fill material was the 16 source of the elevated lead concentrations observed at the 319 17 Site, that similar fill material is present at the Former County 18 properties and the Firehouse Property, that the spatial extent of 19 lead impacts increase as sampling gets closer to the Former 20 County Properties, and that the lead-based paint used on the

21 3 Yolo County also cites to testimony from Dr. Love’s 22 deposition where he testified that he was not aware of when fill material was placed on the 319 Site or who did it, and that there 23 was no other basis for concluding that lead was released onto the 319 Site other than fill material. (See County’s Reply at 4.) 24 However, in that testimony, Dr. Love stated he was not aware of how fill material got there because he had not been asked to look 25 into that at the time. (Id.) Dr. Love’s declaration now states that the documents associated with construction at the Former 26 County Properties indicate that the lead paint used on the 27 buildings is the only documented source of lead near the 319 Site that could account for the levels observed there. (See Love 28 Decl. ¶ 7.) ee nee en ne nn nn nn on EI NE OS OI OE EE

1 three County buildings is the only documented source of lead that 2 could have resulted in the elevated lead concentrations observed 3 at the 319 Site, a reasonable trier of fact could conclude that 4 releases of lead from the Former County Properties during or 5 after construction contaminated fill material at the Former 6 County Properties, and later migrated to or was moved to the 319 7 Site. See Matsushita, 475 U.S. at 586-87 (“on summary judgment 8 the inferences to be drawn from the underlying facts . . . must 9 | be viewed in the light most favorable to the party opposing the 10 motion”). Additionally, because at least one of the three County 11 | buildings was built before the 319 Site was developed for use as 12 an electroplating facility in 1949, a reasonable trier of fact 13 could conclude that the fill material containing lead was 14 deposited at the 319 Site during Yolo County’s ownership. See 15 | id. 16 Accordingly, a genuine issue of material fact exists as 17 to whether Yolo County’s releases of lead will cause the third- 18 | party plaintiffs to incur response costs under CERCLA section 19 107(a). See Celotex, 477 U.S. at 323-24. Because Yolo County 20 has failed to meet its burden of proving no genuine dispute of 21 material fact exists as to any of the elements of CERCLA section 22 107(a) liability, summary judgment is not warranted. See id.; 23 | Aviall, 543 U.S. at 168. 24 IT IS THEREFORE ORDERED that Yolo County’s Motion for 25 Summary Judgment (Docket No. 207) be, and the same hereby is, 27 | Dated: November 17, 2020 tleom ah. A. be—~ UNITED STATES DISTRICT JUDGE