City of West Sacramento v. R & L Business Management

9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---- CITY OF WEST SACRAMENTO, No. 2:18-cv-00900 WBS EFB CALIFORNIA; and PEOPLE OF THE STATE OF CALIFORNIA, 15 Plaintiffs, MEMORANDUM AND ORDER RE: THIRD-PARTY DEFENDANT YOLO 16 v. COUNTY’S MOTION FOR SUMMARY JUDGMENT R AND L BUSINESS MANAGEMENT, a California corporation, f/k/a STOCKTON PLATING, INC., d/b/a CAPITOL PLATING INC., a/k/a CAPITOL PLATING, a/k/a CAPITAL PLATING; CAPITOL PLATING, INC., a dissolved California corporation; et al., Defendants.

----oo0oo---- Plaintiffs City of West Sacramento, California and the People of the State of California (collectively, “the City”) brought this action to address toxic levels of soil and groundwater resulting from the release of hazardous substances at a property once occupied by a metal plating facility at 319 3rd Street, West Sacramento, California. (See Third Am. Compl.

3 (“TAC”) (Docket No. 45).) The City sued a number of defendants under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) section 107(a), 42 U.S.C. § 9607(a), as well as other state and federal statutes, to recover the response costs associated with cleaning up the hazardous substances. (See generally id.) 9 Two of the defendants, R and L Business Management and John Clark (collectively, “R&L”), have brought a single third- party claim against the County of Yolo (“Yolo County”) for contribution under CERCLA § 113(f)(1). (See Am. Third-Party Compl. (“Am. Third-Party Compl.”) (Docket No. 116).) Yolo County has filed a motion for summary judgment on that third-party claim. (See Cty. of Yolo’s Mem. P. & A. (“County’s MPA”) (Docket No. 207-1).)

17 The parties’ dispute centers around the presence and source of lead contamination at 319 3rd Street. (See id.; see Defs.’ Opp’n to Cty. of Yolo’s Mot. Summ. J. (“Defs.’ Opp’n”) (Docket No. 213).) Yolo County argues that no genuine issue of material fact exists because R&L cannot produce evidence showing that Yolo County ever disposed of any lead and, even if it could, lead is not a contaminant for which the City is seeking recovery under CERCLA in its underlying action against R&L. (See County’s MPA; Cty. of Yolo’s Reply at 5-8.) R&L argues that evidence in the record could allow a reasonable trier of fact to conclude that lead that was released by Yolo County was deposited or migrated onto 319 3rd Street and that this lead will cause R&L to incur response costs in its underlying action with the City.

2 (See Defs.’ Opp’n.)

3 I. Factual and Procedural Background 4 The parcel that forms the basis of the City’s lawsuit against R&L is located at 319 3rd Street in West Sacramento, California. (See TAC ¶ 4.) The City’s TAC alleges that R&L owns the property at 319 3rd Street and formerly operated the electroplating business that operated there between 1973 and 1985. (TAC ¶¶ 14, 18.) The TAC alleges that contaminants including nickel, copper, zinc, chromium, and volatile organic compounds including 1,2 DCA that originated from the electroplating business on the parcel have migrated and are migrating in the soil and groundwater to areas beyond the property line, creating “an ever-growing plume of contamination” (the “319 Site”). (See TAC ¶¶ 14, 18, 57-58.) The TAC seeks to hold the third-party plaintiffs liable for necessary response costs and cleanup of this contamination. (See id.) 18 Yolo County has never owned 319 3rd Street or been involved in operations there. (See Decl. of J. Hartman King (“Hartman King Decl.”), Ex. A, B, C, (Docket No. 207-5).)) From at least 1914 until 1987, Yolo County owned two parcels North of 319 3rd Street: 305 3rd Street, which sits at the corner of 3rd Street and C Street, and a single parcel spanning two street addresses on C Street, 221/225 C Street (collectively, the “Former County Properties”). (Id.) In 1987, Yolo County conveyed the Former County Properties to the Redevelopment Agency of the City of West Sacramento via quitclaim deed. (Hartman King Decl., Ex. B.)

1 Yolo County constructed three buildings on the Former County Properties during its period of ownership: a town hall in 1915, an office building in 1956, and a jail in 1957. (See Decl.

4 of Ryan Matthews (“Matthews Decl.”), Exs. A, B, C (Docket No. 213-3, 213-4, 213-5, 213-6).) Contracts signed by Yolo County for the construction of all three of these buildings called for the use of lead paint. (See id.) These three buildings have all been demolished, and the Former County Properties are currently used by the City of West Sacramento as a public parking lot.

10 (See Hartman King Decl., Ex. C, Expert Rebuttal Report of Joseph Turner at 9 (“Turner Report”) (Docket No. 207-5).)

12 Another parcel, 317 3rd Street (“the Firehouse Property”), lies between the Former County Properties and 319 3rd Street. (See Turner Report at Ex. 2.) The Firehouse Property houses the “Washington Firehouse” building and was owned by local fire districts until 1987. (See Hartman King Decl. ¶6; Am. Third-Party Compl. ¶ 12.) The Washington Firehouse still stands on the property, which is currently owned by ECO Green, LLC.

19 (Id.) 20 Over the past several decades, a number of environmental consultants and the California Department of Toxic Substances Control (“DTSC”) have conducted investigations of the 319 Site and surrounding properties. (See Matthews Decl., Ex. D, Expert Report of Dr. Adam Love at 12-13 (“Love Report”) (Docket No. 213-8).) One such investigation was conducted by Wallace and Kuhl Associates (“WKA”) in 2007. (See Hartman King Decl., Ex. D, Wallace & Kuhl Assocs. Report (2007) (“WKA Report”) (Docket No. 207-5).) WKA collected 75 soil samples at 25 locations at the Former County Properties and the Firehouse Property, and found that 23 of the samples exceeded regulatory criteria for lead.

3 (Id.) WKA’s report notes that a prior investigation, conducted by URS Corporation in 2004, had also detected a high concentration of lead in a composite sample taken “on the northeast portion” of the properties. (See id. at 14.) WKA also found ceramic shards, brick, nails, and bone material beneath the asphalt paving on portions of the properties, “possibly suggesting that fill material is present onsite.” (See id.) 10 Based largely on information in the WKA Report, on July 22, 2019, the third-party plaintiffs filed a third-party complaint against Yolo County and ECO Green, LLC, for contribution pursuant to 42 U.S.C. § 9613(f)(1), equitable indemnify, equitable contribution, and declaratory relief. (See Third-Party Complaint (“Third-Party Compl.”) (Docket No. 90).)

16 The Third-Party Complaint alleged that “lead and other toxic chemicals were discharged” from 305 3rd Street and 317 3rd Street “onto and into the soil” beneath those parcels. (See id. at ¶ 23.) On October 28, 2019, the court dismissed all four of R&L’s claims without prejudice because R&L did not seek to hold Yolo County liable for the contamination at issue in the City’s TAC.1 (See Docket No. 115.)

1 Specifically, the court dismissed R&L’s claim for contribution under CERCLA section 113(f)(1) because R&L’s claim stemmed only from alleged lead contamination at 305 3rd Street, whereas the City’s underlying TAC sought damages for the release of nickel, copper, zinc, chromium, and 1,2 DCA at 319 3rd Street. (See Docket No. 115.) Because R&L did not seek to hold Yolo County liable for the contamination at issue in the City’s TAC, the court held that the third-party plaintiffs could not maintain their contribution claim against Yolo County. (See id.) 1 The third-party plaintiffs proceeded to file an amended third-party complaint seeking only contribution under CERCLA section 113(f) against Yolo County and ECO Green, LLC.2 (See Am. Third-Party Compl.) The Amended Third-Party Complaint added allegations that Yolo County owned the property “generally located” at 305 3rd Street, that other toxic chemicals, including zinc, cadmium, and chromium, “were discharged onto and into the soil” at the County property and the Firehouse Property, and that “historic fill material” containing “heavy metals . . . including . . . zinc, cadmium, chromium, and lead” was imported, dumped, released, and/or spread from the County property and the Firehouse Property onto other properties, including 319 3rd Street. (See Am. Third-Party Compl. ¶¶ 38, 44.) The Amended Third-Party Complaint also alleges that releases of fill material from the County property and the Firehouse Property contained contaminants that had commingled with contaminants at 319 3rd Street. (See id.) Subsequently, the court denied Yolo County’s Motion to Dismiss, holding that R&L’s additional allegations had remedied the issues that led the court to dismiss their third- party complaint. (See Docket No. 136.)

21 After the third-party plaintiffs filed their Amended 23 2 Shortly thereafter, ECO Green, LLC and the City reached an agreement for the settlement of all claims and disputes between them in this matter on or about June 22, 2020. (Order re Mot. for Determination of Good Faith Settlement at 2 (Docket No. 174).) The court approved the parties’ settlement, finding it to be “procedurally and substantively fair, reasonable, and consistent with CERCLA’s objectives,” and dismissed R&L’s Amended Third-Party Complaint as to ECO Green, LLC with prejudice. (See id.) Third-Party Complaint, the court granted the City’s Motion for Summary Judgment against R&L, holding that R&L is liable for the contamination at the 319 Site under CERCLA section 107(a). (See Docket No. 125.) The court then denied R&L’s request for divisibility, holding that it is jointly and severally liability for the CERCLA violations that have occurred at the 319 Site.

7 (See Mem. & Order re Defs.’ Divisibility Defense at 28 (“Divisibility Order”) (Docket No. 203).)

9 II. Legal Standard 10 Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 13 P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 18 U.S. 242, 248 (1986) (emphasis in original). A “material” fact is “one that might affect the outcome of the suit under the governing law,” while a “genuine” issue is one where the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 23 The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party can satisfy this burden by (1) presenting evidence that negates an essential element of the non-moving party’s case or (2) demonstrating that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. at 322-23. If the movant can satisfy this initial burden, the burden then shifts to the non- moving party to produce specific facts beyond the pleadings to show the existence of genuine disputes of material fact.

6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Any inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Id. at 587.

10 III. Discussion 11 CERCLA Section 113(f)(1) allows a party to “seek contribution from any other person who is liable or potentially liable under Section 107(a), during or following any civil action under section 106 of this title or under section 107(a) of this title.” 42 U.S.C. § 9613(f)(1). A party may assert a contribution claim only “during or following” a civil action under CERCLA section 106 or 107(a) to which they are a party.

18 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 168 (2004). If a private party has not been sued, the party cannot obtain contribution under section 113(f)(1). Id. 21 Here, the third-party plaintiffs are parties to an action brought against them by the City under CERCLA section 107(a). (See generally TAC; Def. John Clark’s Answer to TAC (Docket No. 48); Def. R&L’s Answer to TAC (Docket No. 49).) They are therefore authorized under CERCLA section 113(f)(1) to seek contribution from “any other person who is liable or potentially liable under section 107(a).” 42 U.S.C. § 9613(f)(1).

28 To establish Yolo County’s liability or potential liability under CERCLA section 107(a), the third-party plaintiffs must satisfy four elements: “(1) the site on which the hazardous substances are contained is a ‘facility’ under CERCLA's definition of that term; (2) a ‘release’ or ‘threatened release’ of any ‘hazardous substance’ from the facility has occurred; (3) such ‘release’ or ‘threatened release’ has caused the plaintiff to incur response costs that were ‘necessary’ and ‘consistent with the national contingency plan,’; and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a).” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 870–71 (9th Cir. 2001) (internal citations omitted) (quoting 3550 Sevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355, 1358 (9th Cir. 1990)). Here, the third-party plaintiffs seek to hold Yolo County liable as the second “class[] of person” set out in section 107(a): “any person who owned or operated a facility at the time the hazardous substances were disposed of.” 42 U.S.C. § 9607(a).

18 The Supreme Court has made clear that a contribution action under section 113(f)(1) may only follow from an action under section 107(a). See Aviall, 543 U.S. at 168. The third element set out in Carson Harbor therefore requires the third- party plaintiffs to show that the release or threatened release of hazardous materials by Yolo County for which they seek contribution must be one that will “cause[] [them] to incur response costs” in the underlying section 107(a) action brought against the them by the City. See id.; Carson Harbor, 270 F.3d 27 at 870–71.

28 Yolo County does not appear to dispute that the Former County Properties or the buildings formerly on them fall under CERCLA’s broad definition of “facility.” See 42 U.S.C. § 9601(9) (defining facility as “any building, structure, installation . .

4 . or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed . . . .”). Therefore, only the second, third, and fourth Carson Harbor elements are at issue. See Carson Harbor, 270 F.3d at 870-71.

8 Yolo County first argues that the third-party plaintiffs cannot carry their burden of showing that a genuine issue of material fact exists under the second and fourth elements set out in Carson Harbor: whether a “release” or “threatened release” of any “hazardous substance” occurred from the Former County Properties during Yolo County’s ownership.

14 (See County’s MPA at 9-11.) Second, Yolo County argues that, even assuming the existence of such releases, the third-party plaintiffs cannot establish a genuine issue of material fact as to the third element set out in Carson Harbor: whether those releases of hazardous substances will cause the third-party plaintiffs to incur response costs in the underlying section 107(a) action brought against them by the City. (See County’s MPA at 11-14.)

22 For the reasons that follow, the court rejects Yolo County’s arguments and finds that R&L has met its burden of establishing genuine issues of material fact as to each element of CERCLA section 107(a) liability and thus for its claim for contribution under CERCLA section 113(f)(1). See Aviall, 543 U.S. at 168.

28 A. Whether a Genuine Issue of Fact Exists as to the Second 1 and Fourth Elements of Section 107(a) Liability To establish the second and fourth elements of section 107(a) liability, R&L must show that a “release” or “threatened release” of a “hazardous substance” occurred from the Former County Properties or buildings on those properties during the period of Yolo County’s ownership. See Carson Harbor, 270 F.3d 7 at 870-71. CERCLA defines the term “release” broadly, as any “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22).

The only “hazardous substance” that R&L argues has been released onto or from the Former County Properties is lead. (See Defs.’ Opp’n at 4-5.) See 40 C.F.R. § 302.4 (listing lead as a “hazardous substance” under CERCLA). Record evidence reveals that lead has been detected in soil at the Former County Properties during prior investigations by environmental consultants. (See Matthews Decl., Ex. D, Expert Report of Dr. Adam Love at 10-11 (“Love Report”) (Docket No. 213-8).) In 2007, WKA detected lead in concentrations that exceeded regulatory criteria in 23 soil samples taken at the Firehouse Property and the Former County Properties. (See WKA Report at 14.) WKA noted in its report that previous investigations had revealed high concentrations of lead in a composite sample taken “on the northeast portion” of the sampling area, which would be on or near 221/225 C Street, the northeastern-most Former County Property. (See id.) Yolo County does not dispute that prior investigations have revealed the presence of lead “on the eastern edge of 221/225 C Street,” one of the Former County Properties. (See County’s Statement of Uncontroverted Facts ¶ 15 (“SUF”) (Docket No. 207-2).) Rather, Yolo County argues that there is no evidence in the record that shows that any of this lead was released onto or from the Former County Properties during the period of Yolo County’s ownership. (See County’s MPA at 9.)

8 Yolo County cites the report of its rebuttal expert, Joseph Turner, which concludes that the record “does not contain any evidence that Yolo County placed any lead-impacted soil on any of the [F]ormer County [P]roperties or that any other disposal of hazardous substances occurred on these properties” while Yolo County was the owner. (See Turner Report at 10-11.) Yolo County also points to deposition testimony of the City’s expert, Dr. Anne Farr, R&L’s expert, Dr. Adam Love, and R&L’s Rule 30(b)(6) witnesses, Richard Leland and John Clark, all of whom testified that they were not aware of any instances in which Yolo County had placed hazardous substances or fill material containing lead on any of the Former County Properties. (See Hartman King Decl., Ex. G, Farr Dep. 174:17-176:9; Ex. H, Love Dep. 237:1-17, 247:1- 21 (Docket No. 207-5); Decl. of Alanna C. Lungren (“Lungren Decl.”), Ex. A, Clark Dep. 62:4-19; Ex. B, Leland Dep. 33:12-16 (Docket No. 207-6).)

24 However, Yolo County’s evidence merely shows that there is no direct evidence in the record of specific or discreet releases of hazardous substances onto or from the Former County Properties during the period of Yolo County’s ownership. “CERCLA liability may be inferred from the totality of the circumstances; it need not be proven by direct evidence.” Tosco Co. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000) (citing United States v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1231-32 (6th Cir. 1996)). Here, the third-party plaintiffs have produced sufficient circumstantial evidence, discussed below, to create a genuine issue of material fact as to whether releases of lead occurred from the Former County Properties during Yolo County’s ownership. See Anderson, 477 U.S. at 248.

9 Specifically, documentary evidence shows that lead paint was used in the construction of three buildings on the Former County Properties during the period of Yolo County’s ownership. See Matthews Decl., Ex. A (“The exterior of said town hall shall be painted with two coats of white lead mixed with boiled linseed oil.”); Ex. B (“Primer coat [for the office building] . . . shall be mixed in the proportions of 60% pigment to 40% vehicle . . . . The pigment shall be composed of 80% white lead and 20% zinc oxide . . . . The finish coat . . . shall be mixed in the proportions of 66% pigment and 34% vehicle . . . .

19 Pigment shall be composed of 35% titanium oxide, 45% white lead, and 20% zin oxide.”); Ex. C (“Interior work [for jail building]: Wood and Metal: Apply one coat of lead and oil based primer followed by two coats of 100% pure prepared, highest grade exterior paint as manufactured by W.P Fuller, Pittsburg, National Lead . . . .”).)

25 Based on these records, R&L’s expert, Dr. Love, states that “lead-based paint from the County-owned building [sic] represents the only documented source of lead to soil in the vicinity to [319 3rd Street] that could have resulted in the observed soil concentrations above the commercial/industrial soil screening levels for lead of 320 milligram per kilogram soil.”

3 (See Decl. of Dr. Adam Love ¶ 7 (“Love Decl.”) (Docket No. 213- 7).) As Dr. Love explains in his declaration, environmental impacts “are typically greater in the spatial extent near to the source of contamination.” Id. ¶ 8. Because the observed lead impacts to soil from prior investigations “have greater spatial extent on the County owned-properties [sic] compared to” 319 3rd Street, Dr. Love concludes that the three County buildings constructed during Yolo County’s ownership represent the only known source that could explain the levels of lead observed at the 319 Site. (See id. ¶¶ 7-10.)

13 Based on this evidence--that Yolo County used lead- based paint in three separate construction projects at the Former County Properties while it owned them, and that lead-based paint is the only documented source of lead in the vicinity of the Former County Properties that could have resulted in the observed concentrations of lead on or near the properties--a jury could reasonably infer that lead was “discharged,” “escaped,” “leached,” was “dumped,” or was “disposed” from the Former County Properties or the buildings on them during construction or during the several decades that Yolo County owned the properties. See Carson Harbor, 270 F.3d at 870–71; Matsushita, 475 U.S. at 586-87 (“on summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion”). The court therefore finds that a genuine issue of material fact exists as to the second and fourth elements of section 107(a) liability. See Matsushita, 475 U.S. at 586-87.

2 B. Whether a Genuine Issue of Fact Exists as to the Third Element of Section 107(a) Liability 4 To establish the third element of section 107(a) liability, R&L must show that the release of hazardous materials by Yolo County for which R&L seeks contribution must be one that will “cause[] [it] to incur response costs” in the underlying section 107(a) action brought against R&L by the City. See Aviall, 543 U.S. at 168; Carson Harbor, 270 F.3d at 870–71.

10 Yolo County argues that, because R&L only offers evidence related to releases of lead, and no other hazardous substance, its claim for contribution must fail as a matter of law. (See Cty. of Yolo’s Reply at 5-8.) Yolo County contends that the court dismissed R&L’s original third-party complaint because it concerned only lead. (See id.) Though the Amended Third-Party Complaint survived Yolo County’s Motion to Dismiss, Yolo County argues it was only because the Amended Third-Party Complaint added allegations that other metals contained in the City’s TAC were released from the Former County Properties.

20 Under Yolo County’s theory, summary judgment is now appropriate because the third-party plaintiffs do not offer any evidence of such releases. (See id.) 23 The inquiry under the third element of section 107(a) liability in a contribution action, however, is not whether the third-party plaintiffs seek contribution strictly for releases of the same contaminants as the City’s TAC--it is whether the third- party plaintiffs seek contribution for releases that will cause them to incur response costs in the City’s section 107 action.

1 See Aviall, 543 U.S. at 168. As the court observed when it denied Yolo County’s Motion to Dismiss the Amended Third-Party Complaint, because the Amended Third-Party Complaint alleges that contaminants originating from the Former County Properties are commingled at the 319 Site, “on a purely practical level, the court cannot infer that the City will clean only the contamination that originated at 319 Third Street.” (See Order re Mot. to Dismiss Am. Third-Party Compl. (Docket No. 136).)

9 That observation applies with even more force now, given that the court has subsequently found that R&L’s contributions to the pollution present at the 319 Site are not divisible from the total harm present at the Site, including harm caused by elevated levels of lead. (See Divisibility Order at 18-19, 27.) Because the third-party plaintiffs allege--and provide evidence--that the Former County Properties are a source of the lead currently found at the 319 Site, “if the City is successful, R&L will undoubtedly have to reimburse the City for the cost of cleaning whatever hazardous contamination is currently at the 319 property, not just that which originated there.” (See Order re Mot. to Dismiss Amended Third-Party Complaint at 6.)

22 Based on the evidence the parties have presented, the court finds that a genuine issue of material fact exists as to whether Yolo County’s releases of lead will cause the third-party plaintiffs to incur response costs. See Matsushita, 475 U.S. at 26 586-87. In their expert reports, both Dr. Love and Dr. Farr conclude that lead is present at the 319 Site at concentrations that will require remediation, and that it is commingled with other contaminants in the soil. (See Love Report at 23; Hartman- King Decl., Ex. E, Rebuttal Expert Report of Dr. Anne Farr at 3-4 (“Farr Rebuttal Report”) (Docket No. 207-5).) In his report, Dr. Love further concludes that source of lead at the 319 Site is a layer of historic fill material upon which the Site was developed. (See Love Report at 20.) Similar fill material has been documented in prior investigations of the Former County Properties and the Firehouse Property. (Love Report at 10-11; WKA Report at 14.)

10 Dr. Love explains that historic fill, which is generally imported to a site to raise topographic elevation, may include construction debris. (See Love Report at 10.)

13 Consistent with his explanation, prior investigations of the Former County Properties and the Firehouse Property discovered ceramic shards, brick, and nails in the shallow soil. (See WKA Report at 14.)

17 Citing records associated with Yolo County’s construction of the town hall, jail, and office building on the Former County Properties, as well as soil samples that show lead impacts with greater “spatial extent” closer to the Former County Properties, Dr. Love concludes in his declaration that “lead- based paint from the County-owned building [sic] represents the only documented source of lead to soil in the vicinity to [319 3rd Street] that could have resulted in the observed soil concentrations above the commercial/industrial soil screening levels for lead of 320 milligram per kilogram soil.”

27 Yolo County’s rebuttal expert, Joseph Turner, disputes this conclusion, asserting in his report that the highest reported lead concentrations in soil are located at the 319 Site and that the use of lead anodes in chromium plating solution by the third-party plaintiffs represents the most likely source of lead contamination at the 319 Site. (See Turner Report at 6.)

5 Dr. Farr also concludes that the highest concentration of lead was detected in the southern portion of the 319 Site, but she acknowledges that elevated lead concentrations detected by WKA represent another “primary” source area of lead at the 319 Site.

9 (See Farr Report at 3-4.) At the summary judgment stage, it is not the court’s task to weigh the credibility of each party’s expert in order to resolve conflicting testimony or evidence.

12 See Celotex, 477 U.S. at 323-24. Rather, the presence of conflicting expert testimony as to the source of lead observed at the 319 Site suggests there is a disputed issue of material fact.

15 See id. 16 Yolo County also argues that the court previously rejected Dr. Love’s conclusion in its order denying R&L’s divisibility defense. Yolo County quotes a portion of the order where the court states “Dr. Love’s assumption that all lead at the [319 Site] must originate with fill material is not based on site-specific data.” (See County of Yolo’s Reply at 8.)

22 However, Yolo County’s reliance on the court’s divisibility order is misplaced for two reasons. First, the conclusions in Dr. Love’s declaration appear to be based in part on evidence that he did not consider in his expert report and that were not before the court in the divisibility hearing, namely the records associated with past construction at the Former County Properties. (See Love Decl. ¶¶ 3-4.)

1 Second, in the divisibility order, the court’s finding that Dr. Love fell short of proving that all lead at the 319 Site must have originated from fill material was made in the context of determining whether R&L’s contributions to the pollution at the 319 Site could be divided from the total harm done to the 319 Site. (See Divisibility Order at 8.) The bar to establish a divisibility defense is much higher than the bar to establish a triable issue of material fact. See Pakootas, 905 F.3d at 598 (describing the burden of proof in a divisibility claim as “‘substantial’ because the divisibility analysis is ‘intensely factual’”). The court’s divisibility order therefore does not prevent it from concluding that Dr. Love’s conclusions are based on adequate data to establish a genuine dispute of material fact at the summary judgment stage. See Celotex, 477 U.S. at 323-24.3 15 Because Dr. Love concludes that fill material was the source of the elevated lead concentrations observed at the 319 Site, that similar fill material is present at the Former County properties and the Firehouse Property, that the spatial extent of lead impacts increase as sampling gets closer to the Former County Properties, and that the lead-based paint used on the Yolo County also cites to testimony from Dr. Love’s deposition where he testified that he was not aware of when fill material was placed on the 319 Site or who did it, and that there was no other basis for concluding that lead was released onto the Site other than fill material. (See County’s Reply at 4.)

24 However, in that testimony, Dr. Love stated he was not aware of how fill material got there because he had not been asked to look into that at the time. (Id.) Dr. Love’s declaration now states that the documents associated with construction at the Former County Properties indicate that the lead paint used on the buildings is the only documented source of lead near the 319 Site that could account for the levels observed there. (See Love Decl. ¶ 7.) ee nee en ne nn nn nn on EI NE OS OI OE EE three County buildings is the only documented source of lead that could have resulted in the elevated lead concentrations observed at the 319 Site, a reasonable trier of fact could conclude that releases of lead from the Former County Properties during or after construction contaminated fill material at the Former County Properties, and later migrated to or was moved to the 319 Site. See Matsushita, 475 U.S. at 586-87 (“on summary judgment the inferences to be drawn from the underlying facts . . . must | be viewed in the light most favorable to the party opposing the 10 motion”). Additionally, because at least one of the three County | buildings was built before the 319 Site was developed for use as 12 an electroplating facility in 1949, a reasonable trier of fact 13 could conclude that the fill material containing lead was 14 deposited at the 319 Site during Yolo County’s ownership. See | id. 16 Accordingly, a genuine issue of material fact exists as 17 to whether Yolo County’s releases of lead will cause the third- | party plaintiffs to incur response costs under CERCLA section 19 107(a). See Celotex, 477 U.S. at 323-24. Because Yolo County 20 has failed to meet its burden of proving no genuine dispute of 21 material fact exists as to any of the elements of CERCLA section 22 107(a) liability, summary judgment is not warranted. See id.; | Aviall, 543 U.S. at 168.

24 IT IS THEREFORE ORDERED that Yolo County’s Motion for 25 Summary Judgment (Docket No. 207) be, and the same hereby is, 26 DENIED.

27 | Dated: November 17, 2020 tleom ah. A. be—~ 28 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE