In Re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
824 F. Supp. 2d 524
S.D.N.Y.2011Background
- OCWD seeks partial summary judgment on three claims (OCWD Act recovery, public nuisance, trespass) regarding MTBE contamination at fourteen gasoline stations.
- Sites share: MTBE detected in shallow aquifers above 5 ppb, defendant ownership/lease of site and on-site USTs, MTBE gasoline supply to station, and site remediation by defendants.
- OCWD argues costs incurred testing and consultant reporting are recoverable as remedial action under OCWD Act, as well as nuisance and trespass liability.
- OCWD holds usufructuary groundwater rights; court previously held those rights allow common law claims but limited when determining limitations and recoverable damages.
- Regulatory context involves California Regional Board and OCHCA; concurrent oversight does not foreclose OCWD claims as to on-site and off-site impacts.
- Court denies OCWD’s motion for partial summary judgment,finding genuine issues of material fact remain on key liability elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OCWD Act recoverability | OCWD is entitled to costs of testing and consultant reports as 'other necessary remedial action'. | Investigation/testing costs are not recoverable; only actual remedial costs are recoverable under §40-8. | Denied; genuine issue of material fact on whether testing/consultant costs fall within recoverable remedial action. |
| Public nuisance elements | MTBE impairing groundwater constitutes a public nuisance due to substantial, unreasonable interference with public water supply. | OCWD has not proven substantial, unreasonable interference or injury to public health; evidence shows shallow, unusable water and lack of off-site invasion evidence. | Denied; issues remain as to substantiality, off-site impact, and whether nuisance is ongoing. |
| Causation and site-based liability (UST-operated sites vs non-UST sites) | UST-operator sites show defendants created/contributed to nuisance; ownership/supply plus remediation suffices for causation. | Non-UST sites operated by independents create factual disputes about causation; however some sites still show substantial factors. | Partial summary judgment denied for overall causation; some sites granted partial relief where clearly substantial factors established. |
| Continuing vs permanent nuisance | Nuisance is continuing due to off-site contamination and ongoing remediation. | Abatement costs and remediative acts do not prove continuing nuisance; abatability uncertain. | Not established as a matter of law; genuine issue on whether nuisance is continuing or permanent. |
| Trespass viability | OCWD has usufructuary right to groundwater; on-site MTBE invasion constitutes trespass. | OCWD's rights are subordinate to state and overlying rights; trespass requires exclusive possession; on-site invasion insufficient. | Denied; issues exist whether OCWD has exclusive possession and whether invasion constitutes continuing trespass. |
Key Cases Cited
- Campbell, 138 F.3d 772 (9th Cir. 1998) (public nuisance requires invasion of the public water supplies, not just on-site contamination)
- Beck Dev. Co. v. Southern Pac. Transp. Co., 44 Cal.App.4th 1160 (Cal. Ct. App. 1996) (off-site contamination and public nuisance standards require invasion of public water supplies)
- City of Modesto Redevelopment Agency v. Superior Court, 119 Cal.App.4th 28 (Cal. Ct. App. 2004) (liability for nuisance depends on creation or assistance in creation of nuisance; not all contamination constitutes nuisance)
- Mangini v. Aerojet-General Corp., 281 Cal.Rptr. 827 (Cal. Ct. App. 1991) (permanence vs continuing nuisance; abatability considerations)
- National Audubon Soc'y v. Superior Court, 658 P.2d 709 (Cal. 1983) (appropriative vs overlying water rights; usufructuary concepts in groundwater)
- City of Barstow v. Mojave Water Agency, 5 P.3d 853 (Cal. 2000) (overlying vs appropriative groundwater rights; public trust considerations)
- Beck, 52 Cal.Rptr.2d 518, Beck Dev. Co. v. Southern Pac. Transp. Co., 44 Cal.App.4th 1160 (Cal. Ct. App. 1996) (limitations on nuisance based on future contamination and public interest)
- Campbell, 138 F.3d 772, 138 F.3d 772 (9th Cir. 1998) (standard for pollution as public nuisance)
- Mangini I, 281 Cal.Rptr. 827 (Cal. Ct. App. 1991) (special injury and nuisance abatement considerations)