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September 2011

San Francisco Environmental/Toxic Tort Team Obtains Summary Judgment in CERCLA and RCRA Case

San Francisco partner Mordecai D. Boone and associate Kristine M. Futoran recently won summary judgment in a CERCLA and RCRA case involving polychlorinated biphenyl ("PCB") contamination at a manufacturing facility owned by plaintiff Tyco Thermal Controls.  Judge Jeremy Fogel of the Northern District of California ruled in favor of Gordon & Rees client and defendant Rowe Industries, Inc., successor to a former transformer manufacturer, dismissing plaintiff's RCRA claim entirely on an issue with little precedent.  This is a significant victory for the client, as it precludes not only RCRA's injunctive relief, but also statutory attorney fees and expert witness costs -- costs that have arguably accrued since plaintiff filed this case in 2006. 
In Tyco Thermal Controls LLC v. Rowe Industries, Inc., et al., plaintiff alleges that Rowe's predecessor's transformer manufacturing operations caused PCB contamination at commercial property that plaintiff owns currently and whose own predecessor, Raychem Corporation, operated at the facility for decades after Rowe's predecessor's time at the site.  In addition to its CERCLA cost recovery action, plaintiff alleges injunctive relief under RCRA.  Gordon & Rees successfully convinced the Court that the statutory notice period for filing the RCRA claim had not been complied with, and that this defect could not be cured by amending the complaint.  Judge Fogel ruled that while plaintiff's RCRA claim must be dismissed, it was not precluded from filing a separate and timely RCRA action, after which the two cases could be consolidated. 
Plaintiff filed a new RCRA complaint, but before it did, the state regulatory authority overseeing the remediation, the California Regional Water Quality Control Board ("CRWQCB"), approved the proposed Remedial Action Plan to clean up the property, which had been researched and devised several months before plaintiff's RCRA claim was dismissed.  This key fact formed the basis of Gordon & Rees's successful summary judgment motion on the RCRA claim.
Following an Oregon district court opinion, Express Car Wash v. Irinaga Bros., 967 F.Supp. 1188 (D. Or. 1996), Judge Fogel ruled that where a remediation plan is substantially in place at the time a RCRA claim is filed, relief is unavailable because it is considered damages.  The Court agreed with Gordon & Rees's argument that since the CRWQCB approved the Remedial Action Plan before plaintiff filed its new and timely RCRA claim, relief is unavailable because the remediation plan was substantially in place.  When a remediation plain is "substantially in place" before a RCRA claim is filed, then plaintiff effectively seeks a damages remedy, much like CERCLA's cost-recovery approach.  Based on long-standing case law, RCRA does not permit a damages remedy. 
The Court also adopted Gordon & Rees's argument that this case did not fall under the Express Car Wash "exception," wherein a RCRA plaintiff may still seek injunctive relief when a remediation plan is substantially in place at the time of suit where plaintiff (1) seeks to have defendant take over a remediation it had already begun, or (2) asks that defendant install a different or additional remedial system.  Since no actual remediation has begun in this case, the Court rejected plaintiff's argument that it fell under this exception, despite the Court's comment that there is no binding authority on this issue.