In a remarkable decision, the 9th Circuit Court of Appeals reversed summary judgment for defendants, but dismissed, on ripeness grounds, CERCLA and RCRA claims brought by the current owner of a skeet shooting range. (Otay Land Company v. United Enterprises, Ltd., 2009 WL 2179737 (9th Cir. 2009)). The court held that neither the CERCLA nor RCRA matters were ripe because no public agency had indicated the need for remediation at the site. If maintained or applied in a different setting, this would be a startling departure from the language of both statutes and prior case law.
Plaintiffs purchased the land in an auction and were fully aware that a skeet shooting club had been present on one of the parcels. As plaintiffs began to develop the property, they found substantial quantities of lead shot and shattered clay targets. They removed more than 42,000 pounds of lead shot, and performed a Remedial Investigation which they submitted to the San Diego County Environmental Department. Plaintiffs then brought this action against the prior property owners to recover their response costs under Section 107 of CERCLA, and to obtain an injunction to remediate the property under RCRA.
The lower court granted summary judgment to defendants on these claims, and discussed the case in completely different terms than the court above. (Otay Land Company v. U.E. Limited, L.P., 440 F.Supp2d. 1152 (S.D. Cal. 2006)). The lower court ruled that the site was not a “facility” because it fell into the CERCLA exception for consumer products in consumer use. The court held that since this was a civilian range, the lead shot was a consumer product being used by consumers.
The court bolstered this finding by noting EPA’s RCRA Munitions Rule which determined that munitions, used for their intended purpose, were not “solid waste.” The court reasoned that if munitions were not a solid waste for RCRA purposes, then they shouldn’t be sufficient for CERCLA jurisdiction either. It also ruled that the presence of lead shot in the soil was not a release. Finally, the court relied again on the Munitions Rule in granting summary judgment for defendants on the RCRA complaint, holding that there could be no RCRA claim without a deposit of solid waste.
While the lower court opinion is odd enough, it made at least a significant effort to hew to the statutory language and discuss prior decisions. However, the 9th Circuit’s opinion ignored even these judicial niceties. It vacated and remanded the lower court’s decision, holding that the CERCLA claims were not ripe because (1) no agency “indicated the need for remediation,” and (2) plaintiffs hadn’t demonstrated a reliable basis for their claimed remedial costs. The court also held that the RCRA claims were not ripe because plaintiffs had not shown that the site presented an imminent and substantial endangerment to health or the environment, especially in light of no public agency expressing any interest in the property.
The 9th Circuit’s decision is unprecedented and unusual. Ripeness has rarely been an issue with respect to claims brought under Section 107 of CERCLA, because the factual predicates for bringing such an action are clearly stated: Plaintiff must allege that it incurred “response costs” with regard to a “release” of “hazardous substances” from a “facility.” While there may be factual and legal issues with respect to each of these items, as demonstrated by the district court’s opinion, once they are all present and properly alleged, plaintiff has a valid CERCLA claim.
The involvement or lack of involvement of a public agency, on which the 9th Circuit places great weight, is completely irrelevant. Congress wrote CERCLA with the assumption that public agencies would not be involved, and to authorize private parties to initiate and recover the costs of their own remediation.
The court’s dismissal of RCRA claims fares no better. RCRA authorizes citizen suits specifically in the absence of public agency involvement, and only after public agencies have been notified of the intent to file suit. Public agency involvement may moot an RCRA citizen suit, but the lack of involvement has no bearing on the claim. While courts frequently set a ridiculously low bar for determining what constitutes the “imminent and substantial endangerment” required to support most private RCRA claims, they have never previously relied on the presence or absence of public agency involvement in making that determination.
While the court vacated an iffy district court decision that a public shooting range could not be a CERCLA “facility” as a matter of law, and assisted plaintiffs by lifting the summary judgment against them, its ruling will provide little value to CERCLA and RCRA jurisprudence. The court’s stark departure from statutory language and precedent provides little support to other parties seeking to rely on its holding.
Developers should always evaluate the environmental risks of potentially contaminated property and be wary of purchasing such property, based on the assumption that they can recover their costs of remediation in litigation. As both decisions demonstrate, anything can happen.