1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CITY OF LINCOLN, No. 2:16-cv-1164-KJM-AC 12 Plaintiff, 13 v. ORDER 14 UNITED STATES OF AMERICA, et al., 15 Defendants. 16 17 In the early 1960s, the United States Air Force constructed and operated an 18 intercontinental ballistic missile launch facility whose refuse was taken to a nearby landfill in the 19 City of Lincoln. The City, alleging hazardous material contained in the refuse pollutes 20 underground water today, sues for costs related to the ongoing contamination. The United States 21 now moves for summary judgment on the City’s CERCLA claims and the United States’ 22 counterclaims against the City. For the reasons discussed below, the court GRANTS the motion 23 in part and DENIES it in part. 24 //// 25 //// 26 //// 27 //// 28 //// 1 I. BACKGROUND 2 A. Factual Background 3 The following facts are drawn from defendant United States’ statement of 4 undisputed facts (“US SOF”), ECF No. 75-2, plaintiff City of Lincoln’s (“City”) responses to that 5 statement, City Response to US SOF, ECF No. 80-1, the City’s statement of undisputed facts 6 (“City SOF”), ECF No. 80-2, and the United States’ responses, US Response to City SOF, ECF 7 No. 84. Unless otherwise noted, these facts are undisputed. 8 1. The Dump 9 Since at least 1952, the City of Lincoln has owned, operated and maintained a six- 10 acre landfill (“Dump”) in Placer County, California. US SOF 1–3, 6. From 1952 until at least 11 June of 1971, the Dump operated five days per week, received approximately 45 cubic yards of 12 waste per day, US SOF 8; City Response US SOF 8, and periodically burned waste in trenches at 13 the Dump, US SOF 9. The Dump ceased operations in 1976. City SOF 1. 14 2. The Launch Facility’s Pre-Operational Period 15 In January 1960, the United States Army Corps of Engineers Ballistic Missile 16 Construction Office began supervising the construction of the Lincoln Missile Complex (“Missile 17 Site”), using Peter Kiewit & Sons Co. as the primary contractor. City SOF 5. The parties dispute 18 whether United States personnel used cleaning solvents containing hazardous substances, such as 19 trichloroethylene (“TCE”) at the Missile Site during the construction phase. US Response City 20 SOF 11. The Air Force accepted the constructed Missile Site from the contractors on 21 September 20, 1962. City SOF 16. 22 3. The Launch Facility’s Operational Period and Phase-Out 23 The Missile Site began operations on September 20, 1962, with the primary 24 mission of maintenance and operations of the Titan 1 intercontinental ballistic (“ICBM”) missile 25 by the 851st Strategic Missile Squadron. US SOF 45. Starting sometime after September 1962, 26 the City began collecting between three to five thirty- or thirty-three-gallon cans of refuse from 27 the Missile Site three times per week. City SOF 18; US SOF 52, 56. The parties dispute the 28 contents of this refuse and whether those contents were hazardous. See City Response to US SOF 1 53–55. The City continued to collect the facility’s refuse until at least January 1965, when the 2 Air Force began deactivating the missiles and shutting down the facility. City SOF 21; US SOF 3 57–58. As part of that process, Beale Air Force Base took over the facility in Spring 1965, US 4 SOF 58, and the United States transferred the property to Placer County in August 1968. US 5 SOF 63. The United States has not identified any waste collector other than the City that 6 disposed of waste from the Missile Site during this time period, City SOF 21, except that items 7 such as used parts were collected by civilian contractors or returned to Beale Air Force Base, US 8 Response to City SOF 21. 9 4. Administrative Regulation of the Dump 10 In 1991 and 2003, respectively, the California Regional Water Quality Control 11 Board (“the Regional Board”) issued a Waste Discharge Requirements (“WDR”) order and then a 12 revised order for the City’s Dump. US SOF 20, 27. 13 In the 1991 WDR, the Regional Board found that total dissolved solids (“TDS”) in 14 the shallow groundwater at the Dump’s southern boundary exceeded the California Secondary 15 Drinking Water Standards, US SOF 21, and required the City to monitor the groundwater for 16 TDS, electrical conductivity, chlorides and groundwater elevation, US SOF 22. The parties 17 dispute whether TDS includes and/or results from the disposal of certain hazardous substances. 18 City Response to US SOF 22 (citing City Ex. 81 at ¶ 4 (Ex. 261 to Savage Depo.) (“Savage 19 Report”) at 71). In accordance with the City’s Final Closure Plan, a low permeability cover was 20 constructed over the Dump in 1993. US SOF 23. 21 Having determined the 1991 WDR no longer adequately described the Dump, the 22 Regional Board issued a revised order in 2003, US SOF 27, which required the City to monitor 23 for Volatile Organic Compounds (VOCs), though the parties dispute whether or not this was 24 because VOCs had previously been detected at the Dump, U.S. Response to City SOF 206; US 25 SOF 29. The Regional Board also required the City to monitor the groundwater level, expressing 26

27 1 Citations to exhibits use the document’s internal pagination. Otherwise, any citations to page numbers refer to the CM/ECF pagination on the top right-hand corner. 28 1 concern there was a not a minimum of five feet of separation between groundwater and landfill 2 waste, as required by state law. US SOF 28. The 2003 WDR also reported that “elevated 3 concentrations of inorganic constituents,” were detected in the groundwater down gradient of the 4 Dump, which included TDS and chloride. City Response to US SOF 30. Accordingly, the 5 Regional Board required the City to establish and carry out a corrective action plan to address 6 “groundwater impacts” at the Dump, City Ex. 1 (2003 WDR) at 6. See US SOF 31. In 2014, the 7 Regional Board issued a cleanup and abatement order to the City for failing to comply with the 8 2003 WDR, at least in part because the five-foot separation between the Dump and the 9 groundwater was not being maintained. US SOF 33–34. The parties dispute whether this order 10 was based on the presence of VOCs at the Dump. City Response to US SOF 33. The order 11 required the City to comply with the 2003 WDR. US SOF 36. In response, the City hired 12 environmental consultants Holdredge & Kull to develop and implement a corrective action work 13 plan to address the issues raised by the order and the 2003 WDR. US SOF 39–40. In 2015, 14 Holdredge & Kull determined that VOCs were not detected “on a consistent basis to warrant 15 further action.” US SOF 42. 16 B. Procedural History 17 On May 26, 2016, the City sued the United States, the United States Air Force and 18 the United States General Services Administration for (1) continuing nuisance; (2) continuing 19 trespass; (3) equitable indemnity/contribution; (4) cost recovery under the Comprehensive 20 Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9607(a), 9613(f) 21 (“CERCLA”); (5) contribution under CERCLA; and (6) declaratory relief. Compl., ECF No. 1. 22 On May 22, 2017, the United States filed a motion to dismiss the Federal Tort Claims Act claims 23 for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), ECF No. 24 22-1, which the court granted, ECF No. 38. 25 The United States now moves for summary judgment of the City’s remaining 26 claims: (4) cost recovery under CERCLA; (5) Contribution under CERCLA; and (6) declaratory 27 relief, as well as its counterclaim against the City for CERCLA contribution and declaratory 28 relief, see US Am. Answer, ECF No. 45. 1 II. LEGAL STANDARD 2 A court will grant summary judgment “if . . . there is no genuine dispute as to any 3 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 4 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 5 resolved only by a finder of fact because they may reasonably be resolved in favor of either 6 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).2 7 The moving party bears the initial burden of showing the district court “that there 8 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 9 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which “must establish 10 that there is a genuine issue of material fact . . . .” Matsushita Elec. Indus. Co. v. Zenith Radio 11 Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must “cit[e] to particular 12 parts of materials in the record . . .; or show [] that the materials cited do not establish the absence 13 or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 14 support the fact.” Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the 15 nonmoving party] must do more than simply show that there is some metaphysical doubt as to the 16 material facts”). Moreover, “the requirement is that there be no genuine issue of material fact 17 . . . . Only disputes over facts that might affect the outcome of the suit under the governing law 18 will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis 19 in original). 20 In deciding a motion for summary judgment, the court draws all inferences and 21 views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 22 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a 23 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 24 //// 25

26 2 Rule 56 was amended, effective December 1, 2010. However, it is appropriate to rely on cases decided before the amendment took effect, as “[t]he standard for granting summary 27 judgment remains unchanged.” Fed. R. Civ. P. 56, Notes of Advisory Comm. on 2010 amendments. 28 1 issue for trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. 2 Co., 391 U.S. 253, 289 (1968)). 3 A court may consider evidence as long as it is “admissible at trial.” Fraser v. 4 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Admissibility at trial depends not on the 5 evidence’s form, but on its content. Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001) 6 (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence “bears the 7 burden of proof of admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir. 8 2002). If the opposing party objects to the proposed evidence, the party seeking admission must 9 direct the district court to “authenticating documents, deposition testimony bearing on attribution, 10 hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in 11 question could be deemed admissible . . . .” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 12 (9th Cir. 2010). However, courts are sometimes “much more lenient” with the affidavits and 13 documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 14 1243 (9th Cir. 1979). 15 The Supreme Court has taken care to note that district courts should act “with 16 caution in granting summary judgment,” and have authority to “deny summary judgment in a case 17 where there is reason to believe the better course would be to proceed to a full trial.” Anderson, 18 477 U.S. at 255. A trial may be necessary “if the judge has doubt as to the wisdom of terminating 19 the case before trial.” Gen. Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1507 20 (9th Cir. 1995) (quoting Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994)). This may be 21 the case “even in the absence of a factual dispute.” Rheumatology Diagnostics Lab., Inc v. Aetna, 22 Inc., No. 12-05847, 2015 WL 3826713, at *4 (N.D. Cal. June 19, 2015) (quoting Black, 22 F.3d 23 at 572); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1285 (11th Cir. 2001). 24 //// 25 //// 26 //// 27 //// 28 //// 1 III. DISCUSSION 2 A. City’s Claims Against the U.S. 3 The City brings a CERCLA claim for recovery of costs against the United States 4 under 42 U.S.C. § 9607(a)(3) and (4), which provide in relevant part: 5 (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for 6 transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at 7 any facility . . . owned or operated by another party or entity and containing such hazardous substances, and 8 (4) any person who accepts or accepted any hazardous substances 9 for transport to disposal or treatment facilities. . . or sites selected by such person, from which there is a release, or a threatened release 10 which causes the incurrence of response costs, of a hazardous substance, shall be liable for-- 11 . . . . 12 (B) any other necessary costs of response incurred by any 13 other person consistent with the national contingency plan[.] 14 Id. (emphases added); Compl. ¶ 39. On the same basis, the City also brings a claim for 15 contribution under CERCLA, Compl. at 15–16, and for declaratory relief on the defendants’ 16 liability for response costs incurred and to be incurred in the future, Compl. at 17–18. 17 “To establish a prima facie case for cost recovery under CERCLA, a plaintiff must 18 prove that: (1) a polluting site is a ‘facility’ within the statute’s definition; (2) the facility released 19 or threatened to release a hazardous substance; (3) the release caused the plaintiff to incur 20 necessary costs of response; and (4) the defendant falls within one of four categories of 21 potentially responsible parties.” Vill. of Milford v. K-H Holding Corp., 390 F.3d 926, 933 (6th 22 Cir. 2004) (citation omitted). The City alleges the United States is liable as an arranger and a 23 transporter, Compl. ¶ 43, and the United States challenges both theories. The United States 24 moves for summary judgment on all of the City’s CERCLA claims, arguing the City cannot prove 25 the second and third elements. Specifically, the United States argues no genuine dispute of 26 material fact exists regarding (1) whether the United States disposed of hazardous material at the 27 City’s dump (i.e., whether defendant is a responsible party) and (2) whether the City’s costs are 28 recoverable under CERCLA. At hearing, plaintiff conceded there is insufficient evidence to 1 support a claim under the transporter theory. Accordingly, the court addresses only arranger 2 liability below. 3 1. CERCLA Claim under 42 U.S.C. § 9607(a)(3) (“Arranger Theory”) 4 To establish liability under CERCLA, 42 U.S.C. § 9607(a)(3), the City must 5 ultimately prove the United States was responsible for disposing a hazardous substance at the 6 Dump, through its arrangement with the City. See Burlington Northern and Santa Fe Ry. Co. v. 7 United States, 556 U.S. 599, 611 (2009) (holding “arranger” liability requires “intentional steps to 8 dispose of a hazardous substance”). The City need not prove the hazardous substances disposed 9 of by the United States caused the City’s remediation costs, but it “must [] present evidence that 10 [the United States’] waste was shipped to [the] site and that hazardous substances similar to those 11 contained in the [United States]’ waste remained present at the time of release.” United States v. 12 Monsanto Co., 858 F.2d 160, 169 n.15 (4th Cir. 1988). Circumstantial evidence can suffice to 13 prove liability, especially where, as here, “the passage of time has made direct evidence difficult 14 or impossible to obtain.” Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 15 131 (2d Cir. 2010) (quoting Franklin County Convention Facilities Auth. v. Am. Premier 16 Underwriters, Inc., 240 F.3d 534, 547 (6th Cir. 2001)); see also Am. Int'l Specialty Lines Ins. Co. 17 v. United States, No. CV 09-01734 AHM RZX, 2010 WL 2635768, at *20 (C.D. Cal. June 30, 18 2010). 19 a. The City’s Evidence 20 The City offers circumstantial evidence that the hazardous substances present at 21 the Dump came, at least in part, from the Missile Site. First, the City offers unrebutted evidence, 22 namely an expert report from the United States’ expert, Dr. McLane, see City SOF 26, that 23 several of the hazardous substances present at the Dump also appeared at the former Missile Site. 24 City SOF 25,3 28–29. Second, the City cites documentary evidence suggesting, at the very least, 25

26 3 The United States’ objections to the sources relied upon by the City, based on lack of foundation, are overruled for the purposes of this motion. See US Response City SOF 25 27 (“Several sources relied upon by the City lack foundation and are not admissible evidence[.]”). See Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) (“When 28 evidence is not presented in an admissible form in the context of a motion for summary judgment, 1 that Missile Site personnel used Trichloroethylene (TCE), one of the hazardous substances found 2 at the Dump. City SOF 31.4 Third, the City cites evidence suggesting the red containers 3 identified by the United States were used to dispose of rags contaminated with hazardous 4 substances, including TCE. City SOF 48.5 For this proposition, the City relies primarily on the 5 deposition of Weldon Conrad Lewis, who served in the Air Force and was stationed at the Missile 6 Site, namely Beale Air Force Base, during the relevant time period from April 1962 until 7 but it may be presented in an admissible form at trial, a court may still consider that evidence.” 8 (citation omitted)) 9 4 As support for this proposition, the City cites the following, for which the court uses the document’s original pagination, or, where there is none, the exhibit pagination, but not the 10 CM/ECF-imposed pagination: City Ex. 19 at 8:1–4, 10:23-25 (United States response to 11 interrogatory stating “Documents show that the Air Force may have used small quantities of trichloroethylene (“TCE”) in the Missile Facility to clean specialized equipment”); City Ex. 27 at 12 1 (2001 Sacramento Bee article describing TCE clean-up effort at Missile Site including interview with environmental restoration project manager for the site); City Ex. 13, at 1–4 (EPA 13 Potential Hazardous Waste Site Preliminary Assessment stating “TCE was used by DoD to 14 prepare and maintain Liquid Oxygen Readiness at the Titan Missile Facility”); City Ex. 48 at 33– 34 (Exhibit page 21–22) (History of Air Force Logistics Command 1964–1965, including 15 memorandum re: Historical Report from Beale Air Force Base, listing “Tric squirt bottles” under “Shakedown – ORI Necessary Equipment”); City Ex. 49 at 7-50 (Exhibit page 11), ¶ 7-24.b 16 (1964 Air Force Technical Manual, Field Maintenance, Launch Complex Facilities Console instructing, “Clean electrical contacts with cloth moistened with trichloroethylene”). 17 The court does not suggest every exhibit in the foregoing or following citations 18 would be admissible, nor that every document tends to suggest TCE was used at the Air Force Base. The court does conclude, however, that, taken together, the City’s evidence tends to 19 suggest TCE was used at the Missile Site, and the content of these exhibits could likely be presented in an admissible form at trial. See Burch, 433 F. Supp. 2d at 1120 (“When evidence is 20 not presented in an admissible form in the context of a motion for summary judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence.” (citation 21 omitted)). 22 The United States’ argument that the City’s references to military records must be disregarded, because the City has not presented a “qualified expert on military practices” is not 23 well taken. As the United States concedes, “the documents speak for themselves.” US Response to City SOF 31. 24 5 As evidence, the City cites (using the internal document pagination): City Ex. 61 (Lewis 25 Depo.) at 202:13–205:2, 205:14–206:18, 206:24–207:5 (testifying “paint or paint byproducts, 26 [and] rags” as well as “any rags that had flammable substances on them” were disposed of “into the red can”); see also id. at 73:10–14 (“most solvents are combustible”); City Ex. 52 (Technical 27 Order 21M-HGM25A-1-1), at 30 (containing Air Force instruction to “treat all cleaning solvents as flammable agents,” including trichloroethylene). 28 1 September 1965. City Ex. 61 (Lewis Depo.) at 14:17–25.6 Mr. Lewis testified he remembered 2 disposing rags that were used to clean machinery, sometimes using solvents, into red containers 3 or “can[s].” See id. at 37:14–23. Finally, it is undisputed that the City collected refuse from the 4 Missile Site, from 1962 to February, 1965, possibly longer. US Response to City SOF 18; US 5 SOF 51. 6 The parties offer no direct evidence explaining how the red containers were 7 disposed of from the Missile Site. No witness has been able to recall how the red cans were 8 disposed of, and the United States has not been able to identify any other entity hired to dispose 9 of the red containers. City SOF 55–567 (“There is no evidence of any Air Force personnel with 10 eyewitness knowledge as to how the wastes in the Red Cans were ultimately disposed of.”). To 11 raise a triable issue of fact regarding the disposal of the contents of the red containers, the City 12 relies on the following string of inferences: First, the United States’ Statement of Facts “identifies 13 only two types of waste receptacles at the Missile Site: (1) the 5-gallon, self-closing, red cans 14 (“Red Cans”), and one or more (2) 33-gallon, silver kitchen cans.” City Response US SOF 48 15

16 6 When citing exhibits, the court uses the documents internal pagination unless otherwise noted. 17 7 As evidence, the City cites (using internal pagination), among other items: City Ex. 72 18 (U.S. Initial Disclosures) at 2–5 (responding to City’s request to name each individual likely to 19 have discoverable information that United States may use to support its claims or defenses, United States does not appear to list anyone with responsibility for disposal of wastes generated at 20 Missile Site other than the City’s employees); City Ex. 63 (Cihla Dep.) at 73:2–74:7, 125:13–18, 203:15–22, 219:16–18 (former Missile Site employee testifying he does not recall any industrial 21 waste plant at Missile Site nor any contractor hauling away industrial waste from Site, there was not a laundry at Site, and he never saw a landfill at Site); Lewis Dep. at 78:2–20, 242:6–243:3 22 (former Missile Site employee testifying he never saw a landfill at Missile Site and he never saw 23 a truck to pick up rags for laundering); City Ex. 58 (Jones Dep.) at 50:13–18, 79:24–80:9, 159:22–160:2, 172:22–173:16 (former Missile Site employee testifying he never saw any outside 24 contractors “topside at the missile site” and he does not recall ever seeing anybody empty the red cans nor any container where rags would be emptied into from red cans); City Ex. 18 (U.S. 25 Response to City’s Interrogatories (Set One), at 12:1–4, 14:13–18:12 (responding to City’s 26 request to identify all contractors and their roles at Missile Site, United States does not name a contractor specifically responsible for waste disposal except City); City Ex. 12 (U.S. Response to 27 City Requests for Admission) at 22:17–28 (responding to City’s request for admission, stating United States “lacks sufficient knowledge or information to admit or deny that the garbage 28 collected by the City from the MISSILE SITE contained any cleaning solvents”). 1 (citing US SOF 48, 50). Second, George Hawkins, a former employee at the Missile Site, only 2 ever recalled seeing trash hauled out of the Site by individuals dressed like cooks, who carried 3 trash out in large plastic bags, suggesting kitchen waste was disposed of in plastic bags. Id. 4 (citing City Ex. 65 (Hawkins Dep.) at 106:3–109:12). Third, the City waste haulers testified they 5 never saw any plastic trash bags when they collected waste from the Missile Site. City Ex. 3 6 (Ojeda Depo.) at 31:3–19 (explaining he generally collected 30-gallon metal cans with no plastic 7 bags); City Ex. 5 (Pasillas Depo.) at 98:7–19 (same)). Therefore, “[t]his leaves only the 8 contaminated trash from the Red Cans for the City’s collection.” City Response US SOF 48 9 (emphasis in original) (citations omitted). 10 b. The United States’ Evidence 11 The United States emphasizes the City “was unable to find a single percipient 12 witness or a single document to prove that the Air Force disposed of a hazardous substance at the 13 Dump,” and therefore argues no genuine dispute of material fact exists as to the United States’ 14 liability. Mot. at 11. The United States admits it contracted with the City to have refuse 15 transported from the Missile Site to the dump, but claims only the kitchen cans were collected, 16 and “there is absolutely no evidence that those cans ever contained a CERCLA hazardous 17 substance.” Id. at 12 (citing US SOF 55). 18 In support, the United States cites the depositions of City garbage collectors who 19 stated they collected waste from the Missile Site, but never detected chemical odors, observed 20 any hazardous items, nor do they recall seeing anything in the Missile Site’s garbage that was 21 different from the waste picked up elsewhere in the city, US SOF 52–54; US Ex. 5 (Ojeda Dep.) 22 at 59:3–42, though one also testified he “had no idea what was in the cans” because he “didn’t 23 look, you don’t have time,” Ojeda Dep. at 57:25–59:2. 24 Nevertheless, it is undisputed that “[w]astes consisting of rags, gauze, or other 25 materials used to wipe up spills of solvents, oil, fuel, or paint were placed in red 5-gallon, self-closing 26 containers.” US SOF 48. Therefore, how the contents of the red containers was disposed is key to 27 the merits of the City’s CERCLA claim. 28 //// 1 c. Discussion 2 The City’s CERCLA claims can be proven through circumstantial evidence 3 “especially where the passage of time has made direct evidence difficult or impossible to obtain.” 4 Niagara Mohawk Power Corp., 596 F.3d at 131. Therefore, in this context, the absence of 5 evidence regarding the process for the red containers’ disposal is not fatal to the City’s case on 6 summary judgment, because the City has presented evidence to support the inferences that: TCE, 7 and possibly other CERCLA hazardous substances, was used at the Missile Site and disposed of 8 in the red containers; the discarded rags containing hazardous substances were not laundered or 9 disposed of onsite;8 the City was the only entity collecting the Missile Site refuse; and therefore, 10 the City must have collected the contents of the red containers for disposal at the Dump, based on 11 the United States’ arrangement with the City. Though the City’s evidence connecting the red 12 containers to the City’s landfill is attenuated, when the court draws all reasonable inferences in 13 the City’s favor, as it must at this stage, the evidence is sufficient to raise a genuine dispute of 14 material fact, especially given the absence of evidence showing directly how the red containers 15 were otherwise disposed of. It is for the factfinder to weigh the parties’ competing evidence and 16 determine whether the preponderance of the evidence supports the inferences the City advances. 17 Further, if there were any evidence of how the red containers were disposed, such evidence would 18 likely be in defendant’s sole possession. If such evidence were accessible at all, the United 19 States’ failure to produce such evidence would give rise to an inference against the United States, 20 not the City. See Int’l Union, United Automobile, Aerospace and Agric. Implement Workers of 21 Am. (U.A.W.) v. N.L.R.B., 459 F.2d 1329, 1336 (1972) (“When a party has relevant evidence 22 within his control which he fails to produce, that failure gives rise to an inference that the 23 ///// 24 8 See Cihla Dep. at 73:2–74:7, 125:13–18, 203:15–22, 219:16–18 (former Missile Site 25 employee testifying he does not recall any industrial waste plant at the Missile Site nor any 26 contractor hauling away industrial waste from Site, there was not a laundry at Site, and he never saw a landfill at Site); Lewis Dep. at 78:2–20, 242:6–243:3 (former Missile Site employee 27 testifying that he never saw a landfill at Missile Site and he never saw a truck to pick up rags for laundering). 28 1 evidence is unfavorable to him.” (citing 2 J. Wigmore, Evidence § 285 (3d ed.1940))). In sum, 2 the absence of direct evidence of the disposal of the red containers is not fatal to the City’s case. 3 Finally, while the United States emphasizes that the hazardous substances found at 4 the Missile Site could have come from elsewhere in the City, see Reply at 6 (citing US Ex. 11 at 5 8), such evidence goes to the weight of the City’s evidence; it is not enough for the court to find 6 that no reasonable jury could find for the City. Accordingly, at this stage, the City’s evidence is 7 sufficient to raise a genuine issue of material fact as to whether the United States is liable under 8 CERCLA, and, accordingly, the United States’ motion for summary judgment on this issue is 9 DENIED. 10 2. Recoverability of Costs 11 The United States also argues the City’s CERCLA claims fail for a second 12 independent reason: the costs the City attempts to recover are not recoverable because (1) they 13 were not “necessary” to respond to the release of CERCLA hazardous substances, and (2) the 14 City has not substantially complied with the National Contingency Plan (NCP), as required to 15 recover costs under CERCLA. Mot. at 16, 21. 16 a. Whether the City’s Costs were “Necessary” 17 Under CERCLA, a party may only recover “necessary” costs incurred in 18 responding. See 42 U.S.C. § 9607(a)(4)(B). To survive summary judgment, the City need only 19 present enough evidence to raise a genuine dispute of material fact regarding whether it incurred 20 “some necessary response costs” in order “to meet the minimal threshold required for establishing 21 its CERCLA claims” against the United States. Mission Linen Supply v. City of Visalia, No. 22 1:15-CV-0672 AWI EPG, 2019 WL 446358, at *16 (E.D. Cal. Feb. 5, 2019. “Response costs are 23 considered necessary when an actual and real threat to human health or the environment exist[s].” 24 City of Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1003 (9th Cir. 2010) (internal 25 quotation marks, citation omitted). Under the definition of “response” under CERCLA, response 26 costs include those incurred to clean up, “prevent or minimize the release of hazardous 27 substances,” see Asarco LLC v. Atl. Richfield Co., 866 F.3d 1108, 1116 (9th Cir. 2017) (quoting 28 ///// 1 42 U.S.C. § 9601(4)), as well as the cost of “actions as may be necessary to monitor, assess, and 2 evaluate the release or threat of release of hazardous substances,” 42 U.S.C. § 9601(23). 3 i. The United States’ Evidence and Argument 4 The United States argues the bulk of the City’s costs were incurred to address non- 5 hazardous substances, such as total dissolved solids (“TDS”), and these costs are not recoverable. 6 The United States admits the City has performed groundwater sampling for Volatile Organic 7 Compounds (“VOCs”), which are hazardous substances, but argues these costs are only a small 8 fraction of the total alleged costs, and the City has not segregated them from the total. Mot. at 16 9 (citing SOF ¶¶ 36-43, 66, 82). 10 As evidence, the United States relies primarily on the 1991 and 2003 WDR and the 11 2014 Cleanup and Abatement Order, which define what the Regional Board required of the City. 12 See Mot. at 17–21. First, the United States argues the 1991 WDR did not identify, or require 13 costs associated with, hazardous substances. Mot. at 17 (citing, inter alia, US SOF 21–22). 14 Second, the 2003 WDR primarily: (1) required the City to rectify its failure to maintain a five- 15 foot separation between the Dump and groundwater, which is unrelated to hazardous substances, 16 Mot at 17–18 (citing US SOF 28, 43); (2) ordered the City to monitor the concentration of 17 “inorganic constituents” in the groundwater, which include “TDS and minerals,” id. (citing US 18 SOF 30); and (3) required the City to “monitor for VOCs semiannually for at least two 19 semesters,” id. at 19 (citing US Ex. 2 ¶ 24 at 6). The United States appears to admit that the latter 20 cost would be recoverable under CERCLA, if the City could establish the requisite causality. 21 Mot. at 19 (“[T]he City has performed limited groundwater sampling for Volatile Organic 22 Compounds (“VOCs”), which are hazardous substances.”). 23 Finally, the United States argues the 2014 Cleanup and Abatement Order “did not 24 cite” CERCLA, but rather found the City was in violation of the 2003 WDR for failure to 25 maintain adequate separation between the Dump and the groundwater, and found an excess of 26 bicarbonate, chloride, nitrogen, and sulfate in the groundwater. Mot. at 19–20 (citing US Ex. 4 at 27 2–4). Other than sampling, the City has not incurred costs to address VOCs in the soil or 28 groundwater at the Dump, the United States argues, and these sampling costs are the only ones 1 recoverable because they are the only costs that were “necessary” to address hazardous 2 substances. Id. (citing US SOF 42–43, 79, 82). 3 ii. The City’s Evidence and Argument 4 The City argues the costs from sampling the groundwater for VOCs are considered 5 “necessary” under CERCLA because VOCs are hazardous substances, a proposition on which the 6 parties appear to agree. Opp’n at 15 (citing Mot. at 16 (“Since 2003, the City has performed 7 limited groundwater sampling for Volatile Organic Compounds [], which are hazardous 8 substances.”)). The City argues the costs are “necessary” particularly because they were incurred 9 to comply with the Regional Board’s directive in the 2003 WDR. Opp’n at 16; City SOF 22, 97; 10 see City Ex. 1 (2003 WDR) at 27–28 (summary of monitoring and reporting frequencies, 11 including “constituents of concern”); id. at 29 (listing “Volatile Organic Compounds” as one of 12 the “Constituents of Concern”). 13 iii. Conclusion 14 Sampling and monitoring costs of hazardous substances are generally recoverable 15 under CERCLA. See Vill. of Milford, 390 F.3d at 934 (citing 42 U.S.C. § 9601(23) (“removal” 16 includes “such actions as may be necessary to monitor, assess, and evaluate the release or threat 17 of release of hazardous substances.”)). The City’s evidence, bolstered by the United States’ own 18 concession regarding the VOC monitoring costs, is sufficient to create a genuine dispute of 19 material fact regarding whether at least some of the City’s costs were “necessary” to respond to 20 hazardous substances, and are therefore recoverable under CERCLA. 21 b. Whether the City was in Substantial Compliance with the NCP 22 To survive summary judgment on a CERCLA claim, a plaintiff must present 23 enough evidence to raise a triable issue of fact regarding whether it substantially complied with 24 the National Contingency Plan (NCP) when it undertook its response efforts. See Carson Harbor 25 Vill., Ltd. v. Unocal Corp., 287 F. Supp. 2d 1118, 1154 (C.D. Cal. 2003), aff’d sub nom. Carson 26 Harbor Vill. v. Cty. of Los Angeles, 433 F.3d 1260 (9th Cir. 2006) (Carson Harbor II); 40 C.F.R. 27 § 300.700(c)(3)(i). The NCP “specifies procedures for preparing and responding to 28 contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant 1 to CERCLA § 105.” City of Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998, 1003 (9th 2 Cir. 2010) (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 n.2 (2004)). “It is 3 designed to make the party seeking response costs choose a cost-effective course of action to 4 protect public health and the environment.” Carson Harbor II, 433 F.3d at 1265 (citation 5 omitted). Response costs are considered consistent with the NCP “if the action, when evaluated 6 as a whole, is in substantial compliance” with it. City of Colton, 614 F.3d at 1003 (quoting 40 7 C.F.R. § 300.700(c)(3)(i)); see also Waste Management of Alameda County, Inc. v. East Bay 8 Regional Park District, 135 F. Supp. 2d 1071, 1100 (N.D. Cal. 2001) (EPA shifted to this flexible 9 “case-by-case” standard “to avoid discouraging private parties from cleaning up hazardous wastes 10 for fear that recovery of their costs would later be precluded by less than perfect compliance with 11 the NCP” (citing 55 Fed. Reg. 8792–94)). The EPA has specifically rejected a checklist approach 12 to NCP compliance, because “a list of rigid requirements [might] serve to defeat cost recovery for 13 meritorious cleanup actions based on a mere technical failure by the private party.” Carson 14 Harbor Vill., Ltd., 287 F. Supp. 2d at 1160 (citing 55 Fed. Reg. 8792–94). 15 i. The United States’ Evidence and Argument 16 The United States argues the City has not substantially complied with the NCP, 17 and therefore none of its costs are recoverable under CERCLA. Mot. at 21–25. In support of this 18 argument, the United States offers the expert report of Dr. McLane, who “reviewed the 19 documentation of the actions taken by the City to comply with Title 27 Regulations and the 2003 20 WDR and noted that several of the NCP requirements were not met.” Mot. at 21–22. 21 Specifically, Dr. McLane concluded that the City failed to: 22 identify Applicable or Relevant and Appropriate Requirements (“ARARs”) for the Dump; failed to perform a Remedial Preliminary 23 Assessment (“PA”) and/or a Remedial Site Inspection (“SI”); failed to perform a formal Remedial Investigation (“RI”), including the 24 failure to identify ARARs as part of the Feasibility Study (“FS”) process; failed to prepare a proper FS; and failed to fulfill the 25 community relations and public interest provisions of the NCP. 26 Id. at 22 (citing US SOF ¶¶ 69–72); see City Ex. 44 (McLane Report) at 22–25; see generally US 27 Ex. 28 (McLane Depo.). Additionally, the United States offers the testimony of Wiley Wright, 28 Certified Public Accountant, to show the City failed to comply with the NCP’s requirement to 1 provide an “accurate accounting” of the costs sought, by, for example, failing to provide 2 sufficient documentation of the relevant expenses and payments made. Mot. at 23–24 (citing US 3 SOF 79–82). 4 ii. The City’s Evidence and Argument 5 The City primarily argues that its cooperation with the Regional Board and the 6 agency’s control over and direction of the City’s corrective measures show the City was in 7 substantial compliance with the NCP. See Opp’n at 22–23; City Response to US SOF 69–76. As 8 to the accurate accounting requirement, the City argues that it is only required to provide 9 documentation to support the costs it seeks, and it has provided at least enough documentation to 10 support some of the sought costs. See Opp’n at 24–26; City Response to US SOF 79. 11 iii. Discussion 12 In a recent case from this district, Mission Linen Supply v. City of Visalia, No. 13 1:15-CV-0672 AWI EPG, 2019 WL 446358 (E.D. Cal. Feb. 5, 2019), aff’d, No. 19-15392, 2020 14 WL 2917272 (June 3, 2020), a colleague analyzed whether a defendant was substantially 15 compliant with the NCP following a bench trial. In that case, the court observed that, generally, 16 consistency with the NCP is unnecessary to recover initial investigation and monitoring costs, id. 17 at *13 (collecting cases), and at least one other district court has held the public participation 18 requirement is inapplicable to monitoring and investigative costs, id. at 16 n.13 (citing United 19 Alloys, Inc. v. Baker, 797 F. Supp. 2d 974, 997 (C.D. Cal. 2011)). Nonetheless, the court in 20 Mission Linen ultimately found the plaintiff’s “close involvement and cooperation” with the 21 California Department of Toxic Substances Control in connection with that agency’s regulatory 22 actions against the plaintiff and the resulting voluntary consent order was sufficient to show 23 substantial compliance with the NCP. Id. 24 Similarly, viewing the City’s actions “as a whole” and eschewing the “checklist 25 approach,” Carson Harbor Vill., Ltd., 287 F. Supp. 2d at 1160, there is at least a genuine dispute 26 of fact over whether the City’s actions were also substantially in compliance with the NCP, 27 particularly because those actions were mandated by the Regional Board. See City SOF 245–51. 28 For example, the Regional Board set specific requirements for the Dump and demanded ongoing 1 monitoring, making the requirement to “identify Applicable or Relevant and Appropriate 2 Requirements” unnecessary to show substantial compliance using a holistic approach. See Opp’n 3 at 22; City SOF 245–46; City Response US SOF 69; R.E. Goodson Const. Co. v. Int’l Paper Co., 4 No. CIV.A.4:02-4184RBH, 2006 WL 4916336, at *34 (D.S.C. Dec. 15, 2006) (finding claimant’s 5 technical failure to identify applicable or relevant and appropriate requirements not a bar to 6 recovery where removal action, “when evaluated as a whole under the existing circumstances[,] 7 achieve[d] substantial compliance with the NCP,” particularly due to Army Corps of Engineers’ 8 involvement). Furthermore, the City has provided sufficient documentation to support at least 9 some of the costs it has incurred. See, e.g., City SOF 276 (describing invoice from Earthtec for 10 1989 work associated with well digging and sampling) (citing City Ex. 91 (July 31, 1989 Earthtec 11 Invoice); City SOF 281–82 (describing invoices from Applied Engineering and Geology, Inc. 12 (“AEG”) for monitoring costs and at least one City check paying AEG invoice 4423) (citing City 13 Ex. 156 (AEG invoice 4423 dated April 15, 2013); City Ex. 157 (City check dated May 10, 2013 14 to AEG for invoice 4423)); Santa Clara Valley Water Dist. v. Olin Corp., 655 F. Supp. 2d 1066, 15 1078 (N.D. Cal. 2009) (denying defendant summary judgment because plaintiff presented time 16 sheets and project codes, which was sufficient to create disputed fact) (citing 40 C.F.R. 17 § 300.160(a)(1) (requiring documentation sufficient to provide accurate accounting of private 18 party costs incurred for response actions)). 19 Specifically regarding the NCP’s public participation requirement, the Ninth 20 Circuit has suggested that “active participation by the [Regional Board] . . . could fulfill the 21 public comment requirement of the National Contingency Plan.” Carson Harbor II, 433 F.3d at 22 1267. In Carson Harbor II, the court found the plaintiff, a private entity, had not substantially 23 complied with the public comment requirement, despite the Regional Board’s involvement, 24 because the Regional Board was “involved in a very limited fashion.” Id. Rather, the agency 25 merely approved the plaintiff’s proposed remedial action plan with minor modifications. Id. The 26 court contrasted this with the facts of Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.1998), 27 where plaintiff substantially complied with the NCP, because the public agency “negotiated two 28 consent decrees” with the plaintiff, oversaw the cleanup efforts, and was present when the 1 plaintiff conducted a preliminary investigation of the pollutants at the property. Carson Harbor 2 II, 433 F.3d at 1267 (citing Bedford Affiliates v. Sills, 156 F.3d at 428, overruled on other 3 grounds by W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90 (2d Cir.2009)). 4 By the standard suggested in Carson Harbor II, the City has provided sufficient 5 evidence to create a triable issue of fact regarding whether it substantially met the public 6 comment requirement of the NCP. First, the City is itself a public entity and was necessarily 7 involved in the efforts at issue in this case. Second, the City provides evidence showing the 8 extensive involvement of the Regional Board, another public agency, including the Regional 9 Board’s involvement in the Dump’s closure in the 1980s and 1990s, as well as in the City’s 10 monitoring and investigation of substances at the Dump, and in reviewing and approving the 11 remedial action. See Opp’n at 14–15; City SOF 244–50, 251 (“The City and its consultants 12 provided regular correspondence updates and reports to the Regional Board during the process of 13 investigating and monitoring contaminants, characterizing the Landfill, and selecting, developing 14 and constructing a remedial action.”). Third, the City presents evidence that the City Council 15 held meetings relevant to the City’s actions in public and publicized details of some of the work 16 being done on its public website. See, e.g., City SOF 87– 89, 107, 113–14, 233–34 (“The City 17 also included Landfill Requests for Proposals (RFPs), describing the nature of the work occurring 18 at the Landfill, in various publications, including the Lincoln News Messenger, the City’s website 19 and City Council agendas.”), 235–39, 241. The City’s evidence suggests the Regional Board was 20 far more involved in the City’s efforts than the agency was in Carson Harbor II and that the 21 City’s process itself involved the public to a degree. This evidence is sufficient for the City to 22 survive summary judgment with respect to compliance with the NCP. 23 iv. Conclusion 24 For the foregoing reasons, the United States’ motion for summary judgement 25 regarding the City’s CERCLA claims is DENIED. 26 B. Counterclaims Against the City 27 The United States also moves for summary judgment on its counterclaim against 28 the City, see ECF No. 45 at 17 (counterclaim for CERCLA contribution), arguing there is no 1 genuine dispute of material fact that the City is the owner and operator of the Dump, and is 2 therefore liable for cleanup costs associated with hazardous substances at the Dump. Mot. at 8 3 (citing 42 U.S.C. §§ 9607(a)(1),(2); United States v. Honeywell Int’l, Inc., 542 F. Supp. 2d 1188, 4 1198–99 (E.D. Cal. 2008) (granting motion for summary judgment on CERCLA “owner” 5 liability)). Though the City “does not deny that it operated the [Dump], nor that it still owns [the 6 Dump],” Opp’n at 27, it argues the court should deny summary judgment, because the United 7 States cannot show the United States incurred any response costs, id. (citing 42 USC 8 §9607(a)(4)). The City adds, “even if the City is found liable, the USA bears the burden at trial 9 of demonstrating a reasonable basis for apportionment, in order to avoid joint and several 10 liability.” Id. at 27 n.9 (citing Burlington Northern and Santa Fe Ry. Co., 556 U.S. at 614–615). 11 “CERCLA provides two distinct causes of action [:] Section 107(a) provides for a 12 right to recovery of costs incurred in cleaning up a site, while § 113(f) provides a defendant in a 13 § 107(a) suit a right to contribution from other potentially responsible parties [] with whom the 14 defendant shares common liability.” Litgo New Jersey, Inc. v. Martin, No. CIV. 06-2891 AET, 15 2012 WL 32200, at *2 (D.N.J. Jan. 5, 2012) (citations omitted), aff’d in part sub nom. Litgo New 16 Jersey Inc. v. Comm’r New Jersey Dep't of Envtl. Prot., 725 F.3d 369, 379 (3d Cir. 2013). The 17 United States’ counterclaim asserts the City is liable for contribution costs under § 113(f), in the 18 event the United States is held liable under § 107(a). See US Am. Answer at 17 ¶ 20 (“ If the 19 City is able to establish that the United States is liable in this action, the Court should allocate the 20 response costs sought by the City among the parties, including the City as the current owner and 21 operator of the Landfill . . . .”). The City’s argument that the United States’ claim fails because it 22 has not incurred response costs of its own is therefore unavailing; the United States is merely 23 claiming the City is at least partially responsible for the City’s response costs. Opp’n at 27. The 24 United States is correct that there is no dispute of material fact over whether the City is liable as 25 the owner and previous operator of the Dump, and the City essentially concedes this point. 26 Opp’n at 27; see 42 U.S.C. § 9607(a)(1),(2). 27 The United States’ motion for summary judgment on this counterclaim as framed 28 in the United States’ pleading is GRANTED. However, this finding does not preclude the 1 possibility of the City’s prevailing at trial on its claim for damages against the United States, 2 because, under CERCLA, liable parties can be held “jointly and severally liable for the entire 3 harm to the site, even though other parties may have contributed to the environmental harm.” 4 Litgo New Jersey, Inc., 2012 WL 32200 at *11. 5 IV. CONCLUSION 6 For the foregoing reasons, the United States’ motion for summary judgment on the 7 City’s CERCLA claims is DENIED, and its motion on the United States’ counterclaim against the 8 City is GRANTED as set forth above. 9 IT IS SO ORDERED. 10 DATED: August 28, 2020. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28