Hook v. Lockheed Martin Corp.

42 F. Supp. 2d 976, 47 ERC (BNA) 1615, 1998 U.S. Dist. LEXIS 21969
District Court, C.D. California·Decided April 2, 1998·No. Nos. CV 96-5584, CV 96-7128·Published·Cited by 1 cases

Opinion

MEMORANDUM OF DECISION

PFAELZER, District Judge.

I.

BACKGROUND

Plaintiffs bring this action against defendant Lockheed Martin Corporation (“Lockheed”) under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). Plaintiffs assert related state law claims for negligence, negligence per se, absolute liability for ultrahazardous activity, trespass, private nuisance, and public nuisance. Plaintiffs seek response costs under CERCLA; permanent injunctive relief; compensation for property losses, including stigma damages; certification of the property damage, personal injury and medical monitoring subclasses and the establishment of a method to address any individual issues regarding causation and damages; an order mandating the defendant to take every action necessary to assure all relief requested is attained and funded; maintenance of jurisdiction until all relief is obtained; attorneys’ fees and costs and interest; and punitive damages.

Defendant Lockheed operated aircraft manufacturing facilities at its Burbank site from 1929 through the early 1990’s. Lockheed used trichloroethylene (“TCE”), and perchloroethylene (“PCE”) through the 1970’s and part of the 1980’s. Lockheed also used hexavalent chromium, but this use diminished by 1992. After notification from the EPA that Lockheed was potentially liable under CERCLA for groundwater contamination at the San Fernando Valley Superfund Site, Lockheed agreed to remediate a portion of the Burbank site.

Several lawsuits have been filed against Lockheed based on this contamination. In 1994, over 1300 Burbank residents hired counsel to advise them regarding their claims for contamination. Before filing suit, these residents and Lockheed entered into a settlement (the “Fournier Settlement”) in 1996 for a large sum of money. Soon after hearing about the Fournier Settlement, plaintiffs in this suit filed their Complaint against Lockheed.

On March 9, 1998, the Court heard oral argument on plaintiffs’ Motion for Summary Adjudication of Certain Uncon-troverted Facts and Conclusion of Law; defendant’s Motion for Summary Adjudication of CERCLA Issues; defendant’s Motion for Summary Adjudication of Medical Monitoring Issues; defendant’s Motion for Summary Adjudication of Property Issues; defendant’s Motion for Summary Judgment or, in the Aterna-tive, Summary Adjudication of Issues Based on Statute of Limitations Defense; class plaintiffs’ Cross-Motion and Motion for Summary Adjudication of Property Issues; and defendant’s Cross-Motion for Summary Adjudication of the Ultrahazar-dous Activity Issue.

II.

DISCUSSION

A. CERCLA

Plaintiffs assert a private cost recovery action pursuant to Section 107 of CERC-[980] LA. CERCLA provides for a private right of action against responsible parties for “necessary costs of response incurred by any person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). Plaintiffs allege their property has been contaminated with TCE, PCE, and hexavalent chromium. They claim they have incurred response costs pursuant to CERCLA, including medical monitoring, water and air filtration systems and barriers, expert costs to monitor exposure and contamination, and natural resource costs.

1. Medical Monitoring Costs

The Ninth Circuit has held private medical monitoring costs are not recoverable response costs under Section 107 of CERCLA. Durfey v. E.I. DuPont De Nemours Co., 59 F.3d 121, 125 (9th Cir.1995); Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1477 (9th Cir.1995). Plaintiffs state that they raise this issue only to preserve it for appeal. Thus, plaintiffs’ medical monitoring costs are not recoverable response costs under CERCLA.

2. Water Supplies, Filtration Systems, and Barriers

Response costs include removal and remedial action, including costs to monitor, assess, and evaluate the release of hazardous substances, and costs to limit access to the property or provide alternative water supplies. 42 U.S.C. § 9601(23); 42 U.S.C. § 9601(24). A response cost must be necessary and consistent with the national contingency plan, and this is a question of fact. Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988).

Plaintiffs state they purchased bottled water, water filtration systems, pool covers, and air filtration systems in response to defendant’s contamination of the Burbank area. CERCLA specifically states water filtration systems and barriers such as fences are response costs. The air filter and pool cover serve as barriers much like a fence, and they could constitute a response cost. Plaintiffs’ costs for these items may be recoverable as response costs under CERCLA if they were necessary, in response to defendant’s acts, and consistent with the national contingency plan.

3. Expert Fees

Section 107 of CERCLA does not provide for the award of a private litigant’s attorneys’ fees. Key Tronic Corp. v. United States, et al., 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). However, “some lawyers’ work that is closely tied to the actual cleanup may constitute a necessary cost of response in and of itself under the terms of 107(a)(4)(B).” Id. at 820, 114 S.Ct. 1960. A litigation cost that could be a response cost is payment for attorneys to identify other potentially responsible parties. Id. These efforts are compensable because apart from reallocating costs, they increase the probability that a cleanup effort will be effective and be financed. Id.

Plaintiffs argue that attorney and expert efforts to identify the geographical area that requires remediation and/or removal and determine the extent of the toxic plumes for water, air and ground pathways should be recoverable under Key Tronic because these efforts assist in identifying the scope of the problem. It is possible that a determination of the extent of contamination would help to remediate the contamination and would serve a purpose other than reallocating costs. Plaintiffs’ claim for recovery of these expert fees may be recoverable under CERCLA.

4. Natural Resource Damages

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Hook v. Lockheed Martin Corp., 42 F. Supp. 2d 976, 47 ERC (BNA) 1615, 1998 U.S. Dist. LEXIS 21969 (C.D. Cal. 1998).

42 F. Supp. 2d 976 (Hook v. Lockheed Martin Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re Burbank Environmental Litigation
42 F. Supp. 2d 976 (C.D. California, 1998)