Bergman Dacey Goldsmith

310-470-6110

Recent 9TH Circuit opinions better define liability under Clean Water Act and CERCLA

City of Los Angeles v. San Pedro Boat Works (9th Cir March 14, 2011) No. 08-56163 – lease holders and other holders of “mere possessory interests” are not “owners” for purposes of CERCLA liability

In San Pedro Boat Works, the City of Los Angeles discovered in 1995 that one of its berths at the Port of Los Angeles was plagued by a variety of contaminants, including polychlorinated biphenyls, polycyclic aromatic hydrocarbons, copper, lead, mercury, chromium, and other contaminants. The City cleaned up the property, and in 2002 the City filed a lawsuit to seek recovery of its cleanup costs against several parties and under several theories, including the Comprehensive, Environmental, Response, Compensation, and Liability Act (“CERCLA”). One of the named defendants was a Coca Cola bottling entity, which was named because it had certain possessory rights to use the contaminated berth.

CERCLA imposes liability on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” (42 USC §9607(a)(2)). In the instant case, the issue was whether Coca Cola’s possessory rights to the use of the berth made Coca Cola an “owner” under the statute, and therefore subject to CERCLA liability for the cleanup.

The 9th Circuit held that mere possessory interests in property, for example easements, permits, or licenses, do not make a party an “owner” of property for purposes of CERCLA liability. As the Court stated, “if Congress intended to impose no-fault, no-cause liability on the holder of a mere possessory interest in real property, the least it could do is speak clearly…In establishing ‘owner’ liability, Congress did not say ‘de facto owner,’ or ‘possessor,’ or ‘person with some incidents or attributes of ownership,’ as it has in other legislation.”

The 9th Circuit decision represents a split from the 2nd and 4th Circuit. While the 9th Circuit has articulated a bright line rule on whether possessory interests qualify for “owner” status under CERCLA, the 2nd and 4th Circuits have applied a more “nebulous and flexible analytical framework” that looks to various factors to determine if an individual is an owner; for example who actually controls the site at issue.

The Court’s decision will likely significantly cut down the number of named defendants in CERCLA actions in the 9th circuit, as Plaintiffs will no longer be able to sue every party who may have had a possessory interest in the contaminated property at issue.

NRDC v. County of Los Angeles (9th Cir. March 10, 2011) No. 10-56017 – Municipalities are on the hook for polluted stormwater

In NRDC v. County of Los Angeles (9th Cir. March 10, 2011) No. 10-56017, the Natural Resources Defense Council and Santa Monica Baykeepers sued the County of Los Angeles over its failure to prevent polluted stormwater from entering the Santa Clara River, the Los Angeles River, the San Gabriel River, and Malibu Creek (collectively the “Watershed Rivers”) in violation of the County’s Clean Water Act (“CWA”) storm water National Pullutant Discharge Elimination System (“NPDES”) permit

The case presented two issues. First, can a municipality be held responsible under the CWA for polluted storm water discharges where the municipaaliity only conveyed the polluted storm water without having actualy caused the storm water to become polluted? Second, what level of proof must a Plaintiff show to get past summary judgment on a CWA violation claim?

As to the first issue, the District admitted that its storm sewers were conveying polluted storm water, but the County contended that the mere fact that its storm sewer infrastructure conveyed polluted storm water, without the County actually causing the storm water to become polluted, prevented the County from being held responsible for the polluted discharges under the CWA.

The Court noted that while EPA had attempted to exempt municipal storm sewers from CWA requirements in the past, those exemptions had been struck down in the 1970’s as not being supported by the language of the CWA. Instead, it is now unchallenged that the CWA does regulate storm water discharges from municipal storm sewers. Further, although the County argued that merely channeling pollutants created by others should not create liability because the County was not an “instrument of addition or generation,” the Court reaffirmed that the CWA does not distinguish between those who add pollutants to water and those who simply convey pollutants in water – “the [CWA] is indifferent to the orginator of water pollution…[The CWA] bans the discharge of any pollutant by any person regardless of whether that person was the root cause or merely the current superindedent of the discharge.”

As to the second issue, the 9th Circuit upheld the grant of summary judgment against the Plaintiffs as to the Santa Clara River and Malibu Creek claims because the Plaintiffs had provided no evidence that polluted storm water from the County storm sewer system had polluted those rivers. The difference between the two sets of rivers was that the Los Angeles and San Gabriel rivers had emission monitoring stations in the storm sewer just prior to the outfalls into the rivers, while the emission testing for the Santa Clara River and Malibu Creek occured in the river itself, and away from the storm sewer outfalls. The Court felt that it was not possible to determine if any emissions from the storm sewer had contributed to pollution into the Santa Clara River and Malibu Creek as there was absolutely no data in the record that the County storm sewers had discharged polluted storm water into those rivers.

The Court’s decision reaffirms the responsibility of municipalities operating under a NPDES permit to prevent the discharge of contaminated storm water into a water of the United States. The most likely effect of the Court’s decision is that municipalities will have to spend significant amount of monies controlling pollution from storm water discharges, a cost which will in turn be passed on to the taxpayer.

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