Facts

In 1998, plaintiff Otay Land Co. bought thousands of acres of land on the Otay Ranch in Chula Vista. The purchase was executed through a probate sale from an estate. A closed shooting range of approximately 69 acres was located on the land. Plaintiff Otay, at one time, planned to convert the land on which the former shooting range was located from open recreational space to mostly commercial and some residential property. Plaintiff Otay and an affiliated entity, plaintiff Flat Rock Land Company, hired consultants to assist in addressing contamination present at the former shooting range. According to the consultants working under the oversight of the San Diego Department of Environmental Health, and pursuant to the California Voluntary Assistance Program (AB 2061), lead shot and clay pigeon debris, among other contaminants, were present on the land. However, no governmental agency ordered the disposal of those substances.

Plaintiffs filed a lawsuit against the entities that had owned the land during shooting range operations in the past, together with those who had operated the shooting range (defendants). They alleged violations of CERCLA and the federal Resource Conservation and Recovery Act (RCRA). CERCLA permits lawsuits for damages, and the RCRA affords plaintiffs injunctive relief for future clean up costs.

PLAINTIFFS' CONTENTIONS:
The substances on the land surpassed regulatory threshold limits. Further, the land contained a semi-volatile organic compound which was imported with soil used when the shooting range was built.

DEFENDANTS' CONTENTIONS:
Defendants denied the allegations, in part claiming that they were not responsible parties under CERCLA or RCRA, and were absolved by contractual releases.

Specials in Evidence

Plaintiffs claimed they expected to spend about $15.4 million in future investigation and remediation costs associated with the disposal of the substances.

Damages

Plaintiffs sought $5 million to cover the past costs of investigation and remediation.

Result

Defendants were granted summary judgment, as the court found applicable the "consumer products in consumer use" exception to the definition of "facility" under CERCLA. The court also found that the contaminants present were neither solid nor hazardous waste within the meaning of RCRA, but denied defendants' applications for more than $7 million in fees and costs under RCRA. Finally, the court declined jurisdiction over plaintiffs' state law claims, which have since been re-filed in San Diego Superior Court. Plaintiffs have appealed the court's CERCLA and RCRA rulings to the United States Court of Appeals for the Ninth Circuit.