Last month, a district court in the Northern District of California held on motions for summary judgment that Technichem, Inc., a hazardous waste management company, was liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for PCE contamination, but that the issue of whether an employee was also considered an “operator” under CERCLA could not be resolved on summary judgment.  The case, Department of Toxic Substances Control v. Technichem, Inc. et al, Case No. 12-cv-05845-VC (N.D. Cal, March 15, 2016), was decided by United States District Judge Vince Chhabria.    

In the opinion, Judge Chhabria first rejected the testimony of Technichem’s expert as inadmissible under Daubert v. Merrer Dow Pharm., Inc., 509 U.S. 579 (1993), because the expert’s testimony attributing the contamination to other sources was based on “speculation” and simply “regurgitate[d] information given to him by other sources.”  Conversely, Judge Chhabria found the California’s Department of Toxic Substances Control’s (DTSC) expert testimony admissible because it was based on “straightforward ideas” that could be tested and have been subjected to peer review.  For example, DTSC’s expert testified that the absence of PCE in groundwater upstream from the contaminated site suggested that groundwater did not carry PCE into the site from other sources.  Based on the facts that Technichem handled large amounts of PCE; that Technichem often spilled PCE at the site; and that Technichem offered only “groundless speculation” that the PCE found at the site could have materialized elsewhere, the judge held the company was unable to create a genuine factual dispute regarding its liability at the site.       

Judge Chhabria did, however, find that the liability of Technichem’s founder and longtime president could not be resolved at the summary judgment stage because the evidence did not conclusively establish that the individual was an operator of the company “at the time the hazardous substances were released into the environment,” as required under CERCLA.   Because a trier of fact could conclude that the actual PCE contamination did or did not occur while the former president was an “operator” at the site, the judge denied both parties’ motions for summary judgment regarding liability on this issue.   

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