January 28, 2022

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California Court Denies Award for Damages Down to Background Levels and Soil/Groundwater Contamination

Striking a blow to plaintiffs seeking damages for cleanups down to “background” levels, the United States District Court for the Southern District of California dismissed an action by the State of California and the City of San Diego seeking damages due to soil and groundwater contamination on city-owned land around and under the San Diego Qualcomm Stadium. California v. Kinder Morgan Energy Partners, L.P., No. 07-CV-1883-MMA (S.D. Cal. Jan. 25, 2013), available at www.bdlaw.com/assets/attachments/Kinder.pdf. Eliminating the lynchpin of the City’s case, the court excluded testimony by the City’s expert under Federal Rule of Evidence 702 and Daubert, and granted summary judgment to the defendant. Kinder Morgan, slip op. at 13, 51-52.

Defendant and its predecessors have operated a gasoline distribution terminal in southern California since the 1960s. Beginning in 1992, the California Regional Water Quality and Control Board ordered defendant to investigate and clean up petroleum releases at the site; the cleanup was scheduled to be complete by the end of 2013. The City of San Diego claimed that city-owned land surrounding and underlying Qualcomm Stadium had been adversely affected by contamination from the adjacent terminal site, and filed suit seeking damages for claims including negligence, nuisance, trespass, as well as declaratory relief. Id. at 2. Notably, the City had never cancelled a sporting event or otherwise lost revenue from its operations on the adjacent land. Id.

The City’s claims rested on its expert’s opinion that although defendant spent $60 million, it should be required to spend another $125 million to clean up the contamination to “background” levels. Id. at 3-5. However, the court found that this opinion was not sufficiently reliable or relevant because, among other things, (1) “background” levels were not the appropriate cleanup standard, (2) no scientific analysis supported what the background levels actually were, and (3) the expert’s opinions were personal rather than scientific. Id. at 8-12. Without the City’s expert testimony, the City was unable to prove that the defendant’s releases reached the City’s property or that the releases were continuing in nature. Id. at 13, 30.  

© 2022 Beveridge & Diamond PC National Law Review, Volume III, Number 114
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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

212-702 5417
Megan R. Brillault Environmental Litigation Attorney Beveridge & Diamond New York, NY
Associate

Megan Brillault represents individuals, trade associations and businesses, including Fortune 500 companies, in complex civil and criminal environmental and toxic tort litigation, including class and mass actions.

Versed in the complexities of e-discovery, Megan helps clients implement cost-effective and fast-paced litigation solutions for all phases of discovery through post-trial proceedings. She also promotes diversity and inclusion within the firm and the legal community, working with the Leadership Council on Legal Diversity and various women's organizations.

A...

212-702-5414
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