Fireman's Fund Ins. Co. v. City of Lodi, Cal.

MEMORANDUM AND ORDER

Plaintiff Fireman’s Fund Insurance Company (“plaintiff’) brought suit alleging that defendant City of Lodi’s (“Lodi”) ordinance, the Comprehensive Municipal Environmental Response and Liability Ordinance (“MERLO”), violates the Supremacy Clause of the United States Constitution because MERLO is preempted by the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 .

This matter is before the court on plaintiffs motion for (1) partial summary judgment on its preemption claim asserted pursuant to - 42 U.S.C. § 1983 and (2) a permanent injunction prohibiting Lodi from further enforcing MERLO. Plaintiffs motion follows a remand from the Ninth Circuit Court of Appeals. See Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 934-35 (9th Cir.2002), cert. denied, — U.S. —, 123 S.Ct. 1754 , 155 L.Ed.2d 512 (2003). The parties presented oral argument on October 10, 2003.

BACKGROUND

A. Contamination Discovered within the City

In April, 1989, Lodi first detected tetrachloroethene (“PCE”) in a water sample from a new water tank. Subsequent testing found PCE contamination in the groundwater and several Lodi…