NANDOR J. VADAS, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is the Motion for Summary Judgment/Partial Summary Judgment filed by Defendants John and Joy Mathson. (Docket No. 63.) The Court has taken this motion under submission on the papers pursuant to Local Civil Rule 7-1(b). (Docket No. 76.) As set forth below, the Court grants Defendants' Motion for Summary Judgment as to the federal claims and declines to retain jurisdiction over the state law claims.
This is a case between neighbors based in part on alleged violations of various federal environmental laws including the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act ("CWA"), the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), and Emergency Planning and Community Right to Know Act ("EPCRA"). Plaintiff raises the following eight claims in his Complaint: 1) CWA violation for discharges from five water point sources; 2) RCRA violation for discharge of hazardous wastes under 42 U.S.C. § 6972(a)(1)(A); 3) RCRA violation for handling, storage, treatment, transportation or disposal of solid or hazardous waste presenting an imminent and substantial danger to health or the environment under 42 U.S.C. § 6972(a)(1)(B); 4) CERCLA violation for discharging hazardous materials; 5) EPCRA violation for failing to report the release of hazardous substances; 6) trespass for dumping substances onto Plaintiff's property and the resulting discharge into Plaintiff's surface and groundwater; 7) nuisance resulting from Defendants' contamination of Plaintiff's property and construction of a fence partially on Plaintiff's property; and 8) negligence and negligence per se from Defendants' contamination of Plaintiff's property in violation of state and county codes and the CWA, failure to remove leaning trees near Plaintiffs property, and from Defendants' drainage pipes. (Docket No. 1) Plaintiff requests a declaration that Defendants violated the CWA, RCRA, CERCLA, and EPCRA. Plaintiff also requests that the Court order Defendants to clean up their property and Plaintiffs property; enjoin Defendants from storing, disposing, or discharging hazardous substances; order Defendants to comply with CERCLA and EPCRA reporting requirements; impose civil penalties for CWA and RCRA violations; and enjoin other conduct by Defendants.
This action was filed on September 25, 2009. (Docket No. 1.) On November 30, 2009, Defendants filed a Motion to Dismiss or Stay Further Proceedings. (Docket No. 12.) Plaintiff opposed the motion. (Docket No. 20.) On March 26, 2010, the Court entered an order resolving the motion and providing in part as follows:
(Docket No. 36, p. 17-18.) Defendants filed an Answer to the Complaint on April 15, 2010.
On August 15, 2011, Defendants filed a Motion for a Protective Order and Exclusion Sanctions. (Docket No. 56.) Plaintiff opposed the motion. (Docket No. 59.) On September 13, 2011, Defendants filed the Motion for Summary Judgment/Partial Judgment now pending before the Court.
(Docket No. 63.) The Court took the Motion for a Protective Order and Exclusion Sanctions under submission on the papers and on September 27, 2012, entered an order granting the Motion. (Docket No. 72.) In that order, the Court found that Plaintiff had failed to comply with the expert witness disclosures required under Rule 26(a)(2), Federal Rules of Civil Procedure. Id. at 3:2-11. Accordingly, the Court ordered that Plaintiff would be "precluded from relying on retained expert witnesses to supply evidence on a motion, at a hearing, or at a trial in this case." Id. at 5:17. The Court ordered Plaintiff to produce "the March 2011 testing results" by close of business on September 30, 2011, and sanctioned Plaintiff in the amount of Defendants' costs and expenses in bringing the motion. Id. at 5:18-22. Defendants filed their bill of costs on October 6, 2011. (Docket No. 74.) The Court entered an order taxing costs and expenses in the amount of $2,525.00 on October 14, 2011. (Docket No. 75.) On October 28, 2011, Plaintiff filed a Motion for Leave to File a Motion for Reconsideration, which the Court denied on December 6, 2011. (Docket Nos. 83, 89.)
On October 17, 2011, the Court entered an order taking Defendants' Motion for Summary Judgment/Partial Judgment under submission on the papers pursuant to Civil Local Rule 7-1(b). (Docket No. 76.) Also on October 17, 2011, Plaintiff filed his opposition to Defendants' motion. (Docket No. 78.) Defendants filed objections to the Opposition the same day. (Docket No. 77.) Defendants filed their Reply to Plaintiff's Opposition on October 24, 2011. (Docket No. 81.) Plaintiff filed objections to Defendants' Reply on November 1, 2011. (Docket No. 88.)
Pursuant to the Court's order, Plaintiff filed a status report on March 16, 2012. (Docket No. 92.) In his status report,
Defendants filed a supplemental report on March 14, 2012. (Docket No. 91.) The supplemental report filed by Defendants provides in part as follows;
Id. at 1:19-2:14.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). Under summary judgment practice, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir.2006). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Miller, 454 F.3d at 987.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to a material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.2000). The opposing party cannot "`rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that `sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R. Civ. Pro. 56(e)); Miller, 454 F.3d at 987. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510; Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir.2006). A "mere scintilla of evidence" supporting the non-moving party's position is insufficient to defeat a motion for summary judgment. Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007); Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir.2007). Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) Advisory Committee Note to 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. at 488; Price v. Sery, 513 F.3d 962, 965 n. 1 (9th Cir.2008); Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061,
Accompanying Plaintiff's Opposition to Defendants' Motion for Summary Judgment/Partial Summary Judgment is a two-volume Declaration of Bruce Remington ("Remington Declaration"). (Docket Nos. 79, 80.) The Remington Declaration is comprised of text, photographs and what appear to be copies of other documents. The photographs and apparent copies of documents are dispersed between the text pages. The text portion of the Remington Declaration is numbered through page 157 and the Court estimates that the non-text portion comprises approximately 100 pages.
Defendants object to the Remington Declaration on the grounds that it does not comply with either Rule 56 of the Federal Rules of Civil Procedure or Civil Local Rule 70-5. Defendants therefore ask the Court to strike the Remington Declaration.
Rule 56(c)(4) requires that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Civil Local Rule 7-5(b) provides as follows:
The Court finds that, as Defendants argue, the Remington Declaration is replete with inadmissible hearsay which cannot be considered by this Court. This includes Plaintiffs descriptions conversations he had with various County and State officials and findings allegedly made by them. The Court also finds that the Remington Declaration contains many speculative opinions and factual assertions that lack foundation. Further, the Court finds that Defendants are correct in arguing that there is no foundation to support Plaintiff's assertion that he constitutes an "expert" in the matters he proclaims. Plaintiff's statement that he is "an expert on, without limitation, the pollution, contamination, and wastes disposed by Mathson on my property, the hydrology and topography of these sites, the volume and location of the various solid and hazardous wastes on this site (especially asbestos pipe), proper scientific sampling and testing procedures, the composition of many of Mathson's wastes dumped on my land discovered to date, the general biology of the sites, the statistically estimated weight of asbestos pipe and friable matting deposited here, and many of the state and federal laws violated thereby," does not make him such. The Court finds
Defendants contend that none of the material cited to in the Remington Declaration is presented in a form that would be admissible evidence, and thus object to it pursuant to Rule 56(c)(2). Defendants note in particular Plaintiff's citation to environmental tests, arguing that these are inadmissible and that Plaintiff lacks qualification to render an opinion regarding them. Defendants also cite Plaintiff's attachment of multiple copies of pages from "Wikipedia" and other websites in support of his assertions, arguing that all of this material is inadmissible and should be stricken. Finally, Defendants argue that the Declaration should be stricken under Civil Local Rule 7-5(b) as it is replete with argument and irrelevant statements and factual assertions made are not supported by admissible evidence.
The Court finds all of Defendants' arguments to be well-taken, and finds that it would be within its discretion to strike the entire Remington Declaration. However, in the interests of judicial economy and in light of the strong public interest in the speedy resolution of this case on the merits, the Court declines to do so. The Court will, however, consider the admissibility of the evidence cited by Plaintiff as it considers each of his arguments in opposition to the pending motion.
1. John and Joy Mathson own the real property located at 778 Westgate Drive and have resided at the property since 1971.
2. Bruce and Suzanne Remington own the real property adjacent to the Mathsons' property and located at 832 Westgate Drive. The Remingtons have owned the real property since 1979.
3. At the outset of this dispute between neighboring real property owners, Remington alleged and asserted that he had the right to maintain certain encroaching structures (i.e., a "fence" and other miscellaneous items) on a portion of the real property the Mathsons' assert belongs to them.
Defendants cite as evidence in support of this fact Request for Judicial Notice ("RJN") Exhibit E, which they describe the "Remington Verified Complaint filed in Humboldt Superior Court, DR080678 on July 21, 2008." Plaintiff disputes only the assertion that this complaint was verified, claiming that it was not. The Court finds the stated fact undisputed for the purposes of the motion.
4. During the course of simultaneously filed litigation in the Humboldt County Superior Court, Michael Pulley of Points West Surveying has been retained by the Mathsons to locate the true boundary line between the Mathson and Remington parcels.
Although Plaintiff responded to this fact offered by Defendants by stating that it is partially disputed, the Court finds that none of Plaintiff's comments dispute the stated fact. The Court finds the stated fact undisputed for the purposes of the motion.
5. As a result of Mr. Pulley's survey work on or about December 15, 2010, he has located the true boundary between the Mathson and Remington parcels and has prepared a formal survey documenting said property line.
Although Plaintiff responds to this fact offered by Defendants by stating that it is partially disputed, Plaintiff states that he now recognizes the Pulley line as the "legal boundary." The Court finds the fact as stated is undisputed for the purposes of the motion.
Defendants cite RJN Exhibit F, Mathson Declaration at paragraph 3, in support of this fact. This Declaration by John Mathson is made under penalty of perjury. Id. at 5. At paragraph 3, Mr. Mathson states, "[d]uring calendar year 1998, my wife and I sought to construct a detached garage and add fill to our backyard for the purpose of landscaping improvements." Defendants also cite the RJN Exhibit F, Declaration of Kyle Skillings ("Skillings Dec.") at paragraph 2. This Declaration is also made under penalty of perjury. Id. at 2. At paragraph 2, Mr. Skillings states in part, "[d]uring the calendar year 1998, I operated a large, rubber tired loader on the Mathsons' property, and spread the fill materials used for their garage construction project and backyard landscaping."
Plaintiff responds to this fact asserted by Defendants by stating that the fact is probably undisputed, "unless at trial it develops that the Mathsons were paid by the truckers to dump their hazardous wastes locally and then have Mathson and Skillings conceal the solid wastes from the authorities." Plaintiff cites no evidence to support the possibility of such a showing at trial, and the Court finds the fact as asserted by Defendants to be undisputed for the purposes of the motion.
7. All fill was placed in the Mathsons' backyard in calendar year 1998. The majority of the fill, as conclusively determined by December 2010 survey evidence, is located on the Mathson parcel.
Defendants cite RJN Exhibit F, the Mathson Declaration at ¶ 4, in support of this asserted fact. In paragraph 4, John Mathson states in part, "[a]ll fill was placed in our backyard in calendar year 1998." Defendants also cite RJN Exhibit E, Skillings Dec., at ¶ 2.
Although Plaintiff states that he disputes this fact, he states that the majority of the fill is located on the Mathsons' land, according to his own estimates. He states specifically that "about 80%" of the fill is on the Mathsons' land. Further, Plaintiff does not dispute that "the December 2010 survey evidence" shows anything other than what Defendants assert it does. Plaintiff merely asserts that the survey evidence is incorrect. The Court therefore finds the fact as asserted by Defendants is undisputed for the purposes of the motion.
8. The Court finds that this asserted fact is disputed.
9. On or about June 16, 2010, Scott Ferriman of Blue Rock Environmental drilled five (5) solid borings on portions of the Mathson property, all within the subject "fill" in close proximity to the portions of the fill on the side of the "fence" Mr. Remington constructed. The purpose of the borings was to obtain analytical testing of the soil components, and specifically to assess whether any "pollutants" or "contaminants" exist in the fill which pose any threat to human health or safety, or to the environment.
In support of this asserted fact, Defendants cite the Declaration of Scott Ferriman ("Ferriman Declaration.") at ¶ 2, in which Ferriman asserts precisely what is stated in this undisputed fact. Although Plaintiff indicates that this fact is partially disputed, Plaintiff simply criticizes the location of Ferriman's testing and assumptions which he claims Ferriman made.
10. Mr. Ferriman and Mr. Gwinn of Blue Rock Environmental were aware that the fill contained chunks of hardened asphalt and concrete.
11. Since hardened asphalt can show up as a "false positive" during analytical testing, leachability testing was performed on all five soil borings taken by Blue Rock Environmental to determine if any pollutants "leached" or migrated from the soil samples collected from the borings into surface water or ground water.
In support of this asserted fact, Defendants cite the Ferriman Declaration at 1 ¶ 4, which provides as follows:
Defendants also cite the Gwinn Declaration at ¶ 14, wherein he states:
Plaintiff disputes this asserted fact, arguing first that, "[a]sphalt does NOT cause a `false positive,' and pretend to be diesel SINCE ASPHALT HAS NO DIESEL MOLECULES." Defendants do not claim to the contrary in the asserted fact set forth above. Second, Plaintiff argues that Defendants have no evidence that the asphalt is not leaching. The Defendants' possession of such evidence is not addressed in the asserted fact in question. Third, Plaintiff asserts that Blue Rock did the wrong EPA leaching test for soils containing motor oil. The correctness of a particular EPA leaching test is not addressed in the asserted fact in question. The Court therefore finds the asserted fact to be undisputed for the purposes of the motion.
12. The leachability test results demonstrated that "absolutely" no hydrocarbons, gasoline or other pollutants claimed to exists by Mr. Remington "leached" or otherwise migrated from the fill, and demonstrated that no contaminants leached into water. All soil borings taken from the Mathsons' property were either "non-detect" for these substances or where minor
In support of this asserted undisputed fact Defendants cite the Ferriman Declaration at ¶ 5, and the Gwinn Declaration at ¶ 12. Ferriman states as follows at paragraph 5 of his Declaration:
At paragraph 12 of his Declaration, Gwinn states as follows: "12. Drill-rod, hand augers, and sampling devices were cleaned in an Alconox (R) wash followed by double rinse in clean tap water to prevent cross-contamination."
Plaintiff disputes this asserted fact, arguing that Blue Rock did the wrong EPA test, and complaining about how the testing was done. The Court finds that the asserted fact addresses only the results of the testing that was done and does not address the choice or method of testing. The Court thus finds that the asserted fact is undisputed for the purposes of the motion.
13. Blue Rock Environmental conducted water testing on the two six inch (6") pipes that exist beneath a substantial portion of the fill on the Mathsons' property and are asserted in Mr. Remington's complaint as a principal point source of contamination. The pipes are perforated, approximately sixty feet in length, and are placed directly under (and drain groundwater located in) substantial portions of the fill on the Mathson's property.
Defendants provide several citations in support of this asserted fact, the first being the Ferriman Declaration at paragraph 6.
Defendants cite the Gwinn Declaration at ¶ 15, wherein Gwinn states as follows:
Defendants also cite RJN, Exhibit H, which is a Notice of Intent to Sue by Plaintiff, addressed to Defendants and dated May 27, 2009. The Notice of Intent to Sue contains the following language:
Notice of Intent to Sue, p. 4. Under the heading, "C.W.A. Violations," Plaintiff states in part, "[o]bviously, the above-referenced TWIN 6" diameter drain pipes from beneath Mathson's entire property also constitute "point sources". [Sic.] Id. at p. 6. Under the same heading, Plaintiff also states:
Id. at p. 7. Finally, Defendants cite the Mathson Declaration at ¶¶ 1, wherein Mr. Mathson states, "[w]hen the fill was placed in 1998, we placed two (2) sixty foot (60') lengths (more or less) of six inch (6") perforated pipe beneath the fill in order to drain it."
Plaintiff disputes this fact, asserting first that the six inch pipes are solid and unperforated. In support of this assertion, Plaintiff cites the Remington Declaration at page 43. The Court has examined page 43 of the Remington Declaration and finds no reference to whether the six inch pipes in question are perforated.
Second, Plaintiff asserts that the six inch pipes are not a principal point source in his
Third, Plaintiff states that the pipes in question are 95 feet long, citing the Remington Declaration at pages 42-3, and pages 13, 69 and 70. These pages provide no reference to the length of the pipes in question.
The Court finds the asserted fact to be undisputed for the purposes of the motion.
14. From a scientific standpoint, the six inch (6") perforated drain pipes constitute an excellent "test case" to determine if contaminants leach through soil, into groundwater.
Defendants cite the Ferriman Declaration at ¶ 6, quoted above. Defendants also cite the Gwinn Declaration at ¶ 15. Under the heading, "Fill Drainage Pipe Outfall Sampling and Analysis," paragraph 15 provides as follows:
Plaintiff disputes this asserted fact, claiming first that the pipes are irrelevant to the case. The Court rejects this argument as meritless, based on Plaintiff's reliance on the pipes as point sources of pollution in both his Notice of Intent to Sue and his Complaint. See, e.g. page 22 of Complaint. Plaintiff claims second that the pipes are 50 to 150 feet from the contamination complained of on his property. The Court finds that this assertion does not establish a dispute as to the asserted fact.
Third, Plaintiff claims that "Blue Rock is WRONG (again) and perpetrating a fraud on this Court." Plaintiff claims that he can prove this fraud with physical evidence at trial or a hearing. Plaintiff cites page 67 C of his Declaration, in which he repeats his assertion that the pipes are not perforated. Plaintiff states that his next course of action is to bring a section of "that pipe" to Court.
As stated above, the Court finds that a dispute exists as to whether the pipe in question is perforated. The Court finds that Plaintiff has not addressed the remainder of the asserted fact and finds it to be undisputed for the purposes of the motion.
15. The results from the water samples from the pipe outfall on the Mathson's property were "non-detect", meaning they did not reveal any motor oil, diesel, gasoline, gasoline constitutes or heavy metals, and the testing results revealed absolutely
Defendants cite the Ferriman Declaration at ¶ 6, quoted above in regard to undisputed fact number 13. Defendants also cite the Gwinn Declaration at ¶ 28, wherein Mr. Gwinn states as follows regarding his investigation of the fill proximal to the property line [emphasis added]:
Plaintiff disputes this asserted fact, criticizing the methods by which the testing was performed. The Court finds that this criticism does not create a genuine dispute to the fact as asserted by Defendants. The Court finds the fact as stated to be undisputed for the purposes of the motion.
16. Hardened chunks of asphalt and concrete present no more danger to the environment than the public streets and highways we drive on.
Defendants cite the Ferriman Declaration at ¶ 3 in support of this asserted fact, wherein Mr. Ferriman states as follows:
Plaintiff states that he disputes this fact, but does not address the fact as stated. The Court finds the stated fact undisputed for the purposes of the motion.
17. Despite Mr. Remington's allegations to the contrary, no point source of water pollution has been located on the Mathsons' land prior to the close of discovery in this proceeding, or after the close of discovery.
Defendants cite the Ferriman Declaration at ¶ 6 and the Gwinn Declaration at ¶ 15 in support of this asserted fact. Both of these paragraphs are quoted above in
Plaintiff disputes this asserted fact, but states, "[n]o point sources have been sought on M's private property." The Court finds the fact as asserted undisputed for the purposes of the motion.
18. Despite Mr. Remington's allegations to the contrary, no water samples taken from any location on the Mathsons' property prior to the close of discovery in this proceeding, or after, and analyzed by a competent and certified laboratory, has revealed the presence of any diesel, gasoline, MTBE or BTEX, lead, any heavy metals, or any other pollutants or hazardous materials which leaches, migrates or in any way infiltrates ground or surface water.
Defendants cite the Ferriman Declaration at ¶ 6 in support of this asserted fact, which is quoted above in reference to undisputed fact number 13. Defendants also cite the Gwinn Declaration at ¶ 29, at which Mr. Gwinn states:
Plaintiff states that he disputes this fact, but offers no argument which directly addresses the fact as stated. The Court finds this fact as stated undisputed for the purposes of this motion.
19. Despite Mr. Remington's allegations to the contrary in this case, at no time has he produced any scientifically competent evidence of any soil borings containing lead or heavy metals at any location, be it on his or the Mathsons' property.
Defendants cite the Ferriman Declaration at ¶ 8 in which he states as follows:
Defendants also cite the Gwinn Declaration at ¶ 29, which is quoted above in reference to undisputed fact number 18.
Plaintiff disputes this asserted fact, but does state expressly that he never conducted borings on Defendants' land. Plaintiff does not address the issue of borings on his land. The Court finds this fact as stated undisputed for the purposes of the motion.
20. The Court finds this asserted fact to be disputed.
21. "No `pollutant' or `hazardous substance' as defined under state or federal law has been located on any portion of the
Defendants cite the Ferriman Declaration at paragraph 8, which is cited above in reference to undisputed fact number 19, and at paragraph 9, which is cited directly above. They also cite the Gwinn Declaration at paragraph 28, cited in reference to undisputed fact number 15, and at paragraph 30, which provides as follows:
Finally, Defendants cite the Schwarz Declaration at paragraph 8, which provides as follows:
Plaintiff disputes this asserted fact, arguing that he found and tested "two asbestos samples" "located on R's side of fence on M's land." He argues that this asbestos may pose an imminent threat. The Court has found these alleged asbestos tests of 2010 inadmissible. Further, no claim regarding asbestos is contained in the Complaint, thus Plaintiff's claim regarding asbestos is irrelevant. The Court finds that the fact as stated is undisputed for the purposes of the motion.
22. "During the course of all scientific testing performed by Blue Rock Environmental, they and their certified laboratory, Kiff Analytical in Davis, California, followed all regulatory and industry requirements for chain of custody and sample testing protocol."
Defendants cite the Ferriman Declaration at paragraph 10, which provides as follows;
Defendants also cite the Gwinn Declaration at paragraphs 8 through 14. Paragraph 12 is quoted in reference to the twelfth undisputed fact, and paragraph 14 is quoted in reference to the eleventh undisputed
Paragraph 13 provides as follows:
The soil samples were transported to Kiff Analytical LLC (Kiff), a DHS-certified laboratory located in Davis, California, for analysis of:
Plaintiff disputes this asserted fact claiming that, "Kiff VIOLATED many protocols, ignored here by M, in their subbing-out work to CalScience Environmental Labs, without proper details, explanations and protocols," citing his own Declaration wherein he relies on the Declaration of John Aveggio, and on his own opinion. Plaintiffs reliance on the opinion of Mr. Aveggio is in violation of this Court's order of September 27, 2012, and Plaintiff has not been deemed an expert in these matters. The Court thus finds that Plaintiff has produced no admissible, competent evidence in support of his claim. The Court therefore finds this stated fact undisputed for the purposes of the motion.
23. The Court finds this fact offered by Defendants to be disputed.
24. Mr. Remington reportedly "self-collected" and unearthed some miscellaneous cement pipe fragments in the area of the fill at or near the property line (as surveyed).
Plaintiff disputes this asserted fact, claiming that, "John Aveggio, a principal of SHN discovered and sampled the asbestos located off the path, next to the fence, on land now recognized as M's land." Plaintiff states that, "All R did was mail them to Western Analytical Labs, as suggested by Mr. Aveggio." The Court finds that the fact as stated is undisputed for the purposes of this motion.
25. The cement pipe fragments, which are alleged to contain asbestos, were deemed non-friable and present no significant threat to human health or safety.
Defendants cite the Schwartz Declaration at paragraphs 6-8. Paragraph 6 is quoted above in reference to undisputed fact no. 24. Paragraph 7 provides as follows:
Paragraph 8 is quoted above in reference to undisputed fact no. 21.
Plaintiff disputes this fact, arguing that the pipes in question are "asbestos pipes, not cement pipes, that the pipes are both friable and non-friable, and that the pipes are a "potential threat." The Court finds that Plaintiff has produced no competent evidence to support his claims and that the fact as stated is undisputed for the purposes of the present motion.
26. At no time prior to filing his complaint in this action or in preparing his Notice of Intent to Sue in anticipation thereof did Mr. Remington allege the existence of any hazardous wastes in the form of asbestos.
Plaintiff does not dispute this asserted fact. The Court finds this fact to be undisputed for the purposes of the present motion.
27. At no time has Mr. Remington produced any F.R.C.P. Rule 26(f) expert witness reports in this case in compliance with said Rule of Court, despite repeated statements and requests by defendants' counsel to do so.
Plaintiff states that this asserted fact is "partially disputed," stating that he has produced substantial declarations and made his experts available for two lengthy depositions. Plaintiff argues that Defendants were therefore not prejudiced. The Court finds that the fact as stated is undisputed for the purposes of this motion.
Civil Local Rule 7-3 provides in part as follows:
Rule 5, Federal Rules of Civil Procedure, entitled, "Serving and Filing Pleadings and Other Papers," provides in part as follows:
Rule 6, Federal Rules of Civil Procedure, entitled, "Computing and Extending Time;
Defendants' Motion for Summary Judgment/Partial Summary Judgment was filed September 13, 2011. (Docket No. 63.) Under the authorities set forth above, Plaintiff's Opposition was therefore due to be filed and served no later than September 30, 2011. Plaintiff, however, admits that he served Defendants with his Opposition by placing a set of all documents in Counsel's dropbox "the evening of October 11, 2011." (Plaintiff's Objections, Docket No 88, 2:19.) Plaintiff filed his Opposition on October 17, 2011. (Docket No. 78.) Plaintiff did not obtain an extension of time to serve and file his Opposition pursuant to Civil Local Rule 6-3. Plaintiff therefore served his Opposition twelve days late and filed his Opposition seventeen days late.
Defendants filed objections to Plaintiff's late filed Opposition. (Docket No. 77.) Defendants note correctly that the Court has discretion to disregard late filed papers. However, the Court finds that Plaintiff appears to have unknowingly relied on a superceded edition of the Civil Local Rules and that the interests of justice weigh in favor of considering his Opposition. See Giordano v. Wachovia Mortg., FSB, No. 5:10-cv-04551-JF, 2011 WL 1130523, at *1 (N.D.Cal.2011) (court exercised discretion to consider late-filed opposition when firm failed to calendar due date correctly). Accordingly, the Court overrules Defendants' objections to Plaintiff's Opposition on the ground of timeliness.
Defendants' Reply was filed October 24, 2011, thirteen days after Defendants were served with the Opposition. (Docket No. 81.) The Reply contains a certificate of service on Plaintiff by mail on October 24, 2011. The Reply was therefore both timely served and timely filed. See Civil Local Rule 5-5 (stating that in the case of service by mail, 3 days are added to the time in which any party must respond). The Court therefore finds Plaintiff's objections to Defendants' Reply based on timeliness to be meritless and overrules those objections. (Docket No. 88.)
Plaintiff alleges that Defendants have violated and continue to violate the CWA through multiple discharges of pollutants from five different point sources without a permit from the National Pollution Discharge Elimination System ("NPDES"). Under the CWA, private citizens may sue any person alleged to be in violation of the conditions of an effluent standard or limitation under the Act or of an order issued with respect to such a standard or limitation by the Administrator of the Environmental Protection Agency (EPA) or any state. See 33 U.S.C. § 1365(a)(1). To establish a violation of the CWA, a plaintiff must prove that the defendant discharged a pollutant into navigable waters from a point source without a permit. See National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir. 1982). In order to prevail at trial in an enforcement action under the CWA, the plaintiff must prove an "ongoing violation" by the defendant. 33 U.S.C. § 1251 et seq.; Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 385, 98 L.Ed.2d 306 (1987). "[A] citizen plaintiff may prove ongoing
Defendants move for summary judgment on this claim, contending that Plaintiff has provided no evidence of any pollution discharge into any navigable waters from the Mathsons' property. Defendants contend that no "point source" of pollution exists, and that Plaintiff's allegations of toxins emanating from Defendants' French drain system are a complete fabrication. They claim that Plaintiff has never conducted any competent tests to establish the existence of any pollutant discharged into water by Defendants. Relying on the Ferriman and Gwinn Declarations, Defendants argue that the testing by their retained consultants shows that the water emanating from the 6" drain pipes, cited in Plaintiff's CWA claim, contains absolutely no pollutants, much less the toxic contents alleged by Plaintiff.
Plaintiff alleges in his May 27, 2009 Notice of Intent to Sue that "Mathson's two 6" drain pipes constitute `point sources' under CWA." In opposing the present motion, Plaintiff claims that "we will prove the Mathsons discharged multiple pollutants in the past and the PRESENT into `Remington Creek' . . . from multiple point sources without any permit." Opposition, 5:4-5. For the purposes of the Clean Water Act, a point source is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 22 U.S.C. § 1362(14).
Plaintiff now states in his Opposition that the Mathsons' 6" drain pipes "are NOT a `point source' relevant to plaintiff's case." Opposition, 7:9-10. Plaintiff devotes considerable discussion to case law addressing whether groundwater can be a "point source" under the CWA. and alleges that "Mathson's polluted waters" flow directly into Remington Creek. Defendants argue that Plaintiff's alleged point sources in the form of alleged springs emanating from the ground do not constitute a point source as defined by federal law, and that even if they did, Plaintiff has not identified any such spring on Defendants' property.
After carefully reviewing Plaintiff's arguments, the Court finds that despite his extensive discussion of the general topic of point sources, Plaintiff has failed to identify any admissible evidence as to the existence of specific point sources on Defendants' property, as required to prevail on his CWA claim. The Court further finds that, as Defendants argue, Plaintiff has also failed to identify any admissible evidence that the groundwater in the area of the fill contains any of the pollutants necessary to prove a cause of action under the CWA or that Defendants have discharged or continue to discharge any pollutants into water. The burden is on Plaintiff to make those showings in order to support his CWA claim. Plaintiff having failed to meet his burden, the Court need go no further. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). The Court concludes that Defendants are entitled to judgment on this claim as a matter of law.
In his second claim for relief, Plaintiff alleges that Defendants have violated the Resource Conservation and Recovery Act ("RCRA") by storing and mishandling large quantities of pollutants, contaminants and hazardous materials, which has caused the discharge of hazardous wastes to soil and groundwater. In his third claim for relief, Plaintiff alleges that Defendants have violated the RCRA by illegally operating a waste disposal and storage site, and by transporting hundred of tons of contaminants to their unpermitted site.
The RCRA provides in part as follows:
Defendants move for summary judgment on this claim, contending that Plaintiff has provided no evidence of pollutants on or emanating from their property. They argue that the only items identified to date in the soil borings from the fill in their backyard are isolated fragments of hardened asphalt. These soil borings were taken by Blue Rock Environmental and were subjected to leachate and extraction tests to determine if any pollutants existed which were hazardous to human health and safety, or the environment. The leachate tested non-detect for gasoline, diesel and all other pollutants and metals tested for, demonstrating, Defendants argue, that the asphalt was entirely inert. (Gwinn Dec. at ¶ 28; Ferriman Dec. at ¶ 8.) Defendants cite paragraph 12 of the Ferriman Declaration, which provides:
In regard to Plaintiff's claims that chunks of cement pipe containing asbestos exist in the fill, Defendants assert that Plaintiff did not assert these claims until about one year ago. Citing the Gans Declaration at ¶ 8, Ex. R, Defendants state that in July of 2011, the Humboldt County
In conclusion, Defendant argue that Plaintiff first started accusing them of pollution in a letter written to them in 2006, and then waited over four years to do any environmental testing. (Gans Declaration, Ex. A.) They argue that Plaintiff has still not produced any environmental testing showing that hazardous materials as defined and regulated by the RCRA exist in the fill. Defendants conclude that without making a showing of the existence of contaminants on the property, Plaintiff cannot state a cause of action under the citizens suit provisions of RCRA.
In response, Plaintiff contends that Defendants have "established and maintained an illegal residential landfill and solid waste disposal facility by unlawfully disposing of and storing several million pounds of solid and hazardous waste on MY land (and his) which
The Court finds that the evidence cited by Plaintiff is inadmissible as without foundation and under the Court's order of September 27, 2012. Further, Plaintiff is not competent to present the opinions he expresses in this proceeding.
As Defendants argue in their Reply, despite having the burden of proof in this case, Plaintiff never tested any portion of Defendants' property. As discussed above, Defendants did conduct soil and
Based on the above, the Court finds that Plaintiff has failed to carry his burden of as the nonmoving party of establishing the elements of a claim under the RCRA. Plaintiff having failed to meet his burden, the Court need go no further. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). The Court concludes that Defendants are entitled to judgment on this claim as a matter of law.
Plaintiff alleges a violation of § 103(a) of CERCLA, claiming that Defendants have discharged high concentrations of several CERCLA and 40 CFR § 302.4 listed hazardous chemicals onto his property, which inferentially exist in equal or greater concentrations beneath their own property. CERLA was designed to promote the "timely cleanup of hazardous waste sites" and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Consolidated Edison Co. of N.Y. v. UGI Utilities, Inc., 423 F.3d 90, 94 (2nd Cir.2005).
Defendants move for summary judgment on this claim, contending that the placement of fill materials, authorized under a Site Disposal Agreement with the County of Humboldt 13 years ago, does not constitute a release of "hazardous substances" by Defendants. Defendants claim that Plaintiff never competently tested for the numerous toxins and heavy metals he lists in his Complaint, and that Blue Rock's testing revealed that none of the exist in the soil. Defendants rely in part on paragraph 30 of the Gwinn Declaration, wherein he states, "[b]ased on the results of this investigation, Blue Rock sees no basis or support for Mr. Remington's claims, and no corrective action related to the fill material is warranted under any state or federal laws governing any of the pollutants Mr. Remington claims to exist in this case." Defendants emphasize in their claim that Plaintiff never tested any portion of the land or water on their property prior to or after filing his Complaint in this case.
Plaintiff responds with a lengthy discussion of the elements of a CERCLA claim, and a bald assertion that Defendants have deposited "7-10 KNOWN `hazardous substances' on plaintiff's land, which can and will be proven in Court to be hazardous." In so arguing, Plaintiff ignores his burden in the present motion for summary judgment, set forth at length above.
After reviewing the parties' arguments, the Court finds that Plaintiff has failed to introduce any admissible evidence to establish a genuine issue of material fact regarding his CERCLA claim. The Court concludes that Defendants are entitled to judgment as a matter of law on this claim.
Plaintiff alleges a violation of § 304 of the EPCRA, 42 U.S.C. § 116, for failure to report a release of hazardous substances. The EPCRA imposes "a system of notification requirements on industrial and commercial facilities and mandate[s] that state emergency response commissions
Defendants move for summary judgment on this claim, contending that their backyard is not a "facility" covered by the provisions of the EPCRA, that there was no "release" of "extremely hazardous substances" in amounts greater than the applicable "reportable quantities" by Defendants, and no "emergency report" was required from Defendants. They further contend that they were not required to submit a follow up emergency notice under 42 U.S.C. § 11004(c). Finally, Defendants contend that Plaintiff's claim brought some 13 years after the backyard landscaping project took place is time-barred under the general "catch-all" five-year statute of limitations period contained in 28 U.S.C. § 2462.
Plaintiff contends in response that the Mathsons' backyard is a "landfill" and as such is regulated by the EPCRA. After reviewing Plaintiffs' arguments, the Court finds that Plaintiff has failed to produce any evidence to establish a genuine issue as to whether the backyard is a commercial facility of the nature regulated by the requirements applicable to commercial landfill facilities under the EPCRA. Plaintiff has provided no competent, admissible evidence that any pollutant exists on the Mathsons' property, and thus has not shown that any release of substances governed by EPCRA § 304 has occurred. Plaintiff having failed to meet his burden of making that showing, Defendants are entitled to judgment as a matter of law on this claim. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
Based on the foregoing and the Court's exhaustive review of the parties' extensive papers filed in connection with the motion, the Court finds that the record taken as a whole could not lead a rational trier of fact to find for Plaintiff in this case. Plaintiff's opposition is not fact-based, and simple gainsaying is insufficient to carry Plaintiff's burden of proof in opposition to this motion for summary judgment. There is no genuine issue for trial remaining and Defendants are entitled to judgment as a matter of law on Plaintiff's federal claims. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.
Accordingly, IT IS HEREBY ORDERED as follows:
1) Defendants' Request for Judicial Notice filed September 13, 2011, is GRANTED (Docket No. 68);
1) Defendants' Motion for Summary Judgment/Partial Summary Judgment is GRANTED and Defendants are granted summary judgment on Plaintiff's first, second, third, fourth, and fifth claims for relief;
2) The Court declines to retain jurisdiction over Plaintiff's state law claims and therefore DISMISSES Plaintiff's sixth, seventh, and eighth claims for relief without prejudice to the litigation of these claims in State Court;
3) The Clerk of the Court is directed to enter judgment for Defendants and to close this case.
