City of Fresno v. United States

MEMORANDUM DECISION RE: DEFENDANT BOEING’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF THE CITY OF FRESNO’S RCRA CLAIM (Doc. 225)

I. INTRODUCTION.

Defendant the Boeing Company now moves, pursuant to Federal Rule of Civil Procedure Rule 56, to dismiss the City’s RCRA claim on the ground that the Court lacks subject matter jurisdiction over the claim under § 113(h) of CERCLA. Alternatively, Boeing argues that the claim is moot because the activities the City seeks to enjoin are already underway, and because there is no imminent and substantial endangerment at OHF as required under RCRA.

The City opposes the motion, however, its opposition is limited to whether TCP presents an imminent and substantial endangerment under the RCRA framework. The City abandons its RCRA cause of action with respect to its TCE and PCE allegations. As to those substances the motion is GRANTED.

II. FACTUAL/PROCEDURAL BACKGROUND.

This case involves a cost recovery/contribution action under CERCLA and related statutes, arising from the parties’ continuing efforts to investigate and clean up Old Hammer Field (“OHF”) in Northeast Fresno, a site presently occupied by the…