FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEAM ENTERPRISES, LLC,
Plaintiff-Appellant,
v.
WESTERN INVESTMENT REAL ESTATE
TRUST, AKA Western Properties
Trust; WPT, INC.,
Defendants,
and
PK II CENTURY CENTER LP; PAN
PACIFIC RETAIL PROPERTIES, INC., as
a corporation and as successor-in-
interest to Western Investment
Real Estate Trust; KIMCO REALTY
CORPORATION, as a corporation and
as successor-in-interest to Pan
Pacific Retail Properties, Inc.;
PRUDENTIAL REAL ESTATE
INVESTORS, as a corporation and as
successor-in-interest to Pan Pacific
Retail Properties, Inc.; JOHN A.
BRANAGH, individually and as a
partner of Modesto Center
Investors, LP and MC II, LP;
LYNETTE F. BRANAGH, individually
and as a partner of Modesto
Center Investors, LP and MC II,
LP; GAYLON C. PATTERSON,
individually and as a partner of
18245
18246 TEAM ENTERPRISES v. WESTERN INVESTMENT
Modesto Center Investors, LP and
MC II, LP; MARLA J. PATTERSON,
individually and as a partner of
Modesto Center Investors, LP and
MC II, LP; MODESTO CENTER
INVESTORS, LP; MC II, LP;
No. 10-16916
VULCAN MATERIALS COMPANY;
LEGACY VULCAN CORPORATION; D.C. No.
MULTIMATIC CORPORATION, now 1:08-cv-00872-LJO-
known as Kirrberg Corporation; SMS
MULTIMATIC, LLC; THE KIRRBERG ORDER AND
CORPORATION, FKA Multimatic AMENDED
Corporation; THE DOW CHEMICAL OPINION
COMPANY; R.R. STREET & CO. INC.,
Defendants-Appellees,
v.
CITY OF MODESTO,
Third-party-defendant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
May 13, 2011—San Francisco, California
Filed July 26, 2011
Amended September 26, 2011
TEAM ENTERPRISES v. WESTERN INVESTMENT 18247
Before: Diarmuid F. O’Scannlain and Ronald M. Gould,
Circuit Judges, and Amy J. St. Eve, District Judge.*
Opinion by Judge O’Scannlain;
Concurrence by Judge St. Eve
*The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
18250 TEAM ENTERPRISES v. WESTERN INVESTMENT
COUNSEL
Jan A. Greben, Greben & Associates, Santa Barbara, Califor-
nia, argued the cause and filed the briefs for the plaintiff-
appellant. With him on the briefs were Jeff G. Coyner and
Danielle L. De Smeth, Greben & Associates, Santa Barbara,
California.
Eric Grant, Hicks Thomas LLP, Sacramento, California,
argued the cause and filed a brief for the defendant-appellee.
With him on the brief was John B. Thomas, Hicks Thomas
LLP, Houston, Texas.
ORDER
The opinion filed July 26, 2011, slip op. 9559 is amended
as follows:
1. At slip op. page 9560, line 14 and 9565, line 12,
replace “R.R. Street & Co., Inc.” with “R.R. Street & Co.
Inc.”
2. At slip op. page 9573, lines 23-25, replace “in
McHenry, California” with “on McHenry Avenue” and “Mo-
desto” with “Orangeburg Avenue.”
TEAM ENTERPRISES v. WESTERN INVESTMENT 18251
An amended opinion is filed concurrently with this order.
The panel has voted to deny the petition for rehearing with
suggestion for rehearing en banc. The panel has unanimously
voted to deny the petition for rehearing. Judges O’Scannlain
and Gould have voted to deny the suggestion for rehearing en
banc, and Judge St. Eve has so recommended. The full court
has been advised of the suggestion for rehearing en banc, and
no active judge has requested a vote on whether to rehear the
matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the suggestion for rehearing
en banc are DENIED. No further petitions for rehearing will
be entertained.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide, among other things, whether the manufac-
turer of a machine used in the dry cleaning process may be
held liable for contribution to environmental cleanup costs
under the Comprehensive Environmental Response, Compen-
sation, and Liability Act.
I
Plaintiff-Appellant Team Enterprises, LLC (“Team”) has,
since 1980, leased space in a shopping center in Modesto,
California, where it operates a dry cleaning store. From 1980
to 2004, Team used perchlorethylene (“PCE”), a volatile
organic compound defined as a “hazardous substance” by the
State of California, in its dry cleaning operation. Team’s dry
cleaning machines used PCE as part of the cleaning process,
thereby generating wastewater containing the chemical. Team
used Puritan Rescue 800 filter-and-still combination equip-
18252 TEAM ENTERPRISES v. WESTERN INVESTMENT
ment (“Rescue 800”), designed and manufactured by
Defendant-Appellee R.R. Street & Co., Inc. (“Street”), to fil-
ter and to recycle the PCE-laden wastewater for reuse. The
Rescue 800 returned distilled PCE to Team’s dry cleaning
machines and deposited the resulting wastewater into an open
bucket. Once in the bucket, some of the remaining PCE would
separate from the water, allowing Team to recapture “pure”
(or visible amounts of) PCE for reuse. The remaining waste-
water contained dissolved—and invisible—PCE.
Team disposed of this wastewater by pouring it down the
sewer drain. Some of the PCE then leaked into the soil, and
the California Regional Water Quality Control Board deemed
the affected property in need of cleanup, which Team duly
performed at its own expense.
Team sued Street and several other defendants in the East-
ern District of California,1 for contribution under the Compre-
hensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675. Team
also alleged various state-law causes of action, including
claims for trespass and nuisance.
The district court granted summary judgment to Street on
all claims and entered final judgment as to it. Team timely
appealed the district court’s grant of summary judgment as to
Team’s CERCLA, trespass, and nuisance claims.
II
A
[1] Congress enacted CERCLA in 1980 “in response to the
1
In a memorandum disposition filed concurrently with this opinion, we
decide Team’s appeal from the district court’s grant of judgment on the
pleadings to Multimatic Corporation. See Team Enters., LLC v. Multimatic
Corp., No. 10-16486.
TEAM ENTERPRISES v. WESTERN INVESTMENT 18253
serious environmental and health risks posed by industrial
pollution.” Burlington N. & Santa Fe Ry. Co. v. United States,
129 S. Ct. 1870, 1874 (2009). CERCLA was “designed to
promote the timely cleanup of hazardous waste sites and to
ensure that the costs of such cleanup efforts were borne by
those responsible for the contamination.” Id. (internal quota-
tion marks and citation omitted). The statute imposes strict
liability for environmental contamination upon four broad
classes of covered persons.2 42 U.S.C. § 9607(a).
[2] Once identified as a covered person, “an entity . . . may
be compelled to clean up a contaminated area or reimburse
the Government for past and future response costs.” Burling-
ton N., 129 S. Ct. at 1878; see also 42 U.S.C.
§ 9607(a)(4)(A)-(D) (describing the remediation and cleanup
costs for which covered persons may be held liable). CER-
CLA further provides that a person who has incurred cleanup
costs may seek contribution from any other covered person.
42 U.S.C. § 9613(f)(1). Team argues that Street is a covered
person because Street allegedly “arranged for disposal” of
hazardous substances. The section giving rise to arranger lia-
bility provides, in relevant part, that liability shall be imposed
on:
any person who by contract, agreement or otherwise
arranged for disposal . . . of hazardous substances
owned or possessed by such person, by any other
party or entity, at any facility . . . owned or operated
by another party or entity and containing such haz-
ardous substances . . . .
2
These categories include: (1) the current owners and operators of a ves-
sel or facility, (2) the former owners or operators of a facility at the time
of disposal of any hazardous substance, (3) any persons who arranged for
disposal or treatment of a hazardous substance at any facility owned or
operated by another party, and (4) transporters of such substances to a dis-
posal or treatment facility. 42 U.S.C. § 9607(a).
18254 TEAM ENTERPRISES v. WESTERN INVESTMENT
42 U.S.C. § 9607(a)(3). Arranger liability ensures that owners
of hazardous substances may not free themselves from liabil-
ity by selling or otherwise transferring a hazardous substance
to another party for the purpose of disposal. See Burlington
N., 129 S. Ct. at 1878 (“[Arranger] liability would attach . . .
if an entity were to enter into a transaction for the sole pur-
pose of discarding a used and no longer useful hazardous sub-
stance.”). Because there are myriad schemes by which a party
may “arrange[ ] for disposal” of a hazardous substance, courts
have recognized that determining whether a transaction gives
rise to arranger liability is a fact-intensive inquiry. See Cal.
Dep’t of Toxic Substances v. Alco Pac., Inc., 508 F.3d 930,
938 (9th Cir. 2007).
B
Team alleges that Street is subject to arranger liability
under two distinct theories: (1) Street took “intentional steps”
and “planned a disposal” of PCE, and (2) Street had “author-
ity to control and exercised control over the disposal process.”
1
[3] In Burlington Northern, the Supreme Court recognized
that “CERCLA does not specifically define what it means to
‘arrang[e] for’ disposal of a hazardous substance.” 129 S. Ct.
at 1879. Nevertheless, giving the phrase its “ordinary mean-
ing,” the Court explained that “the word ‘arrange’ implies
action directed to a specific purpose.” Id. (citing Merriam-
Webster’s Collegiate Dictionary 64 (10th ed. 1993)). There-
fore, “an entity may qualify as an arranger . . . when it takes
intentional steps to dispose of a hazardous substance.” Id.
While actions taken with the intent to dispose of a hazardous
substance are sufficient for arranger liability, actions taken
with the mere knowledge of such future disposal are not. See
id. at 1880. As the Court explained,
[w]hile it is true that in some instances an entity’s
knowledge that its product will be . . . discarded may
TEAM ENTERPRISES v. WESTERN INVESTMENT 18255
provide evidence of the entity’s intent to dispose of
its hazardous wastes, knowledge alone is insufficient
to prove that an entity “planned for” the disposal,
particularly when the disposal occurs as a periph-
eral result of the legitimate sale of an unused, useful
product.
Id. (emphasis added).
[4] In light of the intent requirement, we have long recog-
nized the so-called useful product defense to CERCLA
claims. See Alco Pac., 508 F.3d at 934. The defense prevents
a seller of a useful product from being subject to arranger lia-
bility, even when the product itself is a hazardous substance
that requires future disposal. Id. In other words, a person may
be subject to arranger liability “only if the material in question
constitutes ‘waste’ rather than a useful product.”3 Id. (citation
omitted). A plaintiff can overcome the defense by showing
that the substance involved in the transaction “has the charac-
teristic of waste at the time it is delivered to another party.”
Id. at 936 (internal quotation marks and citation omitted).
The useful product doctrine serves as a convenient proxy
for the intent element because of the general presumption that
persons selling useful products do so for legitimate business
purposes. It would be odd, for example, to say that an auto
parts store sells motor oil to car owners for the purpose of dis-
posing of hazardous waste. Conversely, persons selling or
otherwise arranging for the transfer of hazardous waste
3
CERCLA does not define the term “disposal” but instead incorporates
the definition set forth in the Solid Waste Disposal Act (“SWDA”). See
42 U.S.C. § 9601(29). The SWDA defines “disposal” as “the discharge . . .
of any . . . hazardous waste into or on any land or water so that such . . .
hazardous waste . . . may enter the environment . . . .” Id. § 6903(3).
Because the term disposal specifically incorporates the concept of
“waste,” this court has “developed a body of case law distinguishing
between the disposal . . . of ‘waste’ and the sale of a ‘useful product.’ ”
Alco Pac., 508 F.3d at 934.
18256 TEAM ENTERPRISES v. WESTERN INVESTMENT
(which no longer serves any useful purpose) are more likely
trying to avoid incurring liability that might attach were they
to dispose of the hazardous waste themselves. In other words,
the probable purpose for entering into such a transaction is to
dispose of hazardous waste.
a
[5] We recognize that the prototypical case applying the
useful product doctrine to avoid liability involves a defendant
selling products that qualify as hazardous substances, such as
pesticides or batteries. See, e.g., Burlington N., 129 S. Ct. at
1870 (sale of pesticides); Alco Pac., 508 F.3d 930 (sale of
dross and slag); La.-Pac. Corp. v. ASARCO Inc., 24 F.3d
1565 (9th Cir. 1994) (sale of slag); Catellus Dev. Corp. v.
United States, 34 F.3d 748 (9th Cir. 1994) (sale of spent bat-
teries). Conversely, none of the parties in this appeal contend
that the Rescue 800 equipment is itself a hazardous substance.
Nevertheless, the presumption animating the doctrine—that
people sell useful products for legitimate business purposes,
not for the purpose of disposing of waste—is applicable to
this case. Absent a showing that Street intended for its sale of
the Rescue 800 to result in the disposal of PCE, we must con-
clude that Street lacks the requisite intent for arranger liabil-
ity. See Burlington N., 129 S. Ct. at 1879 (“ ‘[I]t would be
error for us not to recognize the indispensable role that state
of mind must play in determining whether a party has other-
wise arranged for disposal . . . of hazardous substances.’ ”
(quoting United States v. Cello-Foil Prods., Inc., 100 F.3d
1227, 1231 (6th Cir. 1996))).
b
[6] Team insists that intent can be inferred from Street’s
designing its product in such a way as to render disposal inev-
itable. According to Team, the Rescue 800 generated waste-
water containing dissolved PCE, and Team allegedly had “no
other choice than to dispose of the contaminated waste water”
TEAM ENTERPRISES v. WESTERN INVESTMENT 18257
by pouring it down the drain. But the design of the Rescue
800 does not indicate that Street intended the disposal of PCE.
At most, the design indicates that Street was indifferent to the
possibility that Team would pour PCE down the drain. This
is insufficient. See id. at 1880 (rejecting the Government’s
argument that Shell could be held liable as an arranger “by
shipping [the pesticide] . . . under conditions it knew would
result in the spilling of a portion of the hazardous substance”).
[7] Team has presented no evidence indicating that Street
designed the Rescue 800 for the alleged “purpose of being a
waste disposal machine.” The self-evident purpose of the Res-
cue 800 was to recover and to recycle usable PCE that would
otherwise be discarded. Indeed, if Team’s assertions are true,
Team would have disposed of far more PCE had it not used
the Rescue 800 to recapture used PCE. That Team felt com-
pelled to dispose of wastewater containing PCE after using
the Rescue 800 does not indicate that Street “planned a dis-
posal” of PCE. We are therefore satisfied that Street is not
subject to arranger liability on the basis of its product design.
c
[8] Team also urges us to infer intent from Street’s failure
to warn Team about the risk of contamination that would
result from improper disposal. But allowing intent to be
inferred from a mere failure to warn would greatly expand the
scope of arranger liability. For example, a plaintiff would
have a viable CERCLA claim against an auto manufacturer
that failed to warn purchasers that motor oil must be disposed
of properly once it has outlived its usefulness. Countless other
manufacturers would also be subject to arranger liability
under Team’s novel theory. We are unpersuaded that CER-
CLA liability extends so far. While a manufacturer who fails
to warn the buyer about a product’s inherent risk might be
subject to a products-liability claim, we are not convinced that
sellers of useful products must instruct buyers on proper dis-
posal techniques in order to avoid CERCLA liability.
18258 TEAM ENTERPRISES v. WESTERN INVESTMENT
[9] In conclusion, we hold that to satisfy the intent require-
ment, a company selling a product that uses and/or generates
a hazardous substance as part of its operation may not be held
liable as an arranger under CERCLA unless the plaintiff
proves that the company entered into the relevant transaction
with the specific purpose of disposing of a hazardous sub-
stance. Team has failed to present evidence giving rise to a
triable issue as to whether Street sold the Rescue 800 with
such a purpose.
2
[10] Team also asserts that Street “exercised control over
the disposal process.” Arranger liability premised upon a
party’s control over the disposal process is well established.
See United States v. Shell Oil Co., 294 F.3d 1045, 1055 (9th
Cir. 2002) (“[C]ontrol is a crucial element of the determina-
tion of whether a party is an arranger under § 9607(a)(3)”). In
Shell Oil, we explained that “ ‘[n]o court has imposed
arranger liability on a party who never owned or possessed,
and never had any authority to control or duty to dispose of,
the hazardous materials at issue.’ ” Id. at 1058 (quoting
United States v. Iron Mountain Mines, Inc., 881 F. Supp.
1432, 1451 (E.D. Cal. 1995)); see also Gen. Elec. Co. v.
AAMCO Transmissions, Inc., 962 F.2d 281, 286 (2d Cir.
1992) (“[I]t is the obligation to exercise control over hazard-
ous waste disposal, and not the mere ability or opportunity to
control the disposal of hazardous substances that makes an
entity an arranger under CERCLA’s liability provision.”).
Given that Street had no legal authority to direct Team’s con-
duct, Team must show that Street exercised actual control
over Team’s disposal of PCE to subject Street to arranger lia-
bility.
a
Here, Street never owned or possessed the hazardous sub-
stances at issue. Nor did Street have a duty to dispose of the
TEAM ENTERPRISES v. WESTERN INVESTMENT 18259
PCE Team used in its dry cleaning machines. Nevertheless,
Team claims that because the design of the Rescue 800 “re-
quired a dry cleaner to toss contaminated waste water down
the drain,” Street controlled the disposal of PCE. This argu-
ment is unavailing in light of Burlington Northern. There,
Shell’s requirement that the purchaser store the pesticide in
bulk required the purchaser to transfer the chemical from one
bulk tank to another using a process that invariably led to dis-
posal of the hazardous substance. Burlington N., 129 S. Ct. at
1875. The Court held, however, that Shell was not liable as
an arranger under such circumstances. Id. at 1880.
b
[11] Team also points to a portion of the Rescue 800’s
instruction manual that directed users to pour wastewater into
a bucket. This is insufficient to establish control because
instruction manuals are akin to recommendations and, there-
fore, do not control the actions of the purchaser. See Cal.
Dep’t of Toxic Substances Control v. Payless Cleaners, 368
F. Supp. 2d 1069, 1080 (E.D. Cal. 2005) (concluding that
instruction manuals do not “exercise [ ] control over the ulti-
mate decision on how to dispose of the PCE”). Even if the
evidence established that Team was compelled to follow
every step in the instruction manual, the manual directed
Team to attach a “pipe from waste water leg of water separa-
tor downward 18 [inches] so that waste water may be caught
in a pail or other suitable container.” This procedure was
implemented to ensure that “solvent will not be lost down the
drain.” Team’s vice president of operations in Modesto, Fred-
eric Jones, Jr., confirmed in his deposition that “one purpose
of the bucket was to prevent pure [PCE] from going down the
drain in the event of a separator malfunction.” Team pres-
ented no evidence that Street controlled its subsequent act of
pouring the contents of the pail down the drain. Team claims
that other disposal options were cost prohibitive, and that it
therefore had “no practical choice as to how to dispose of the
waste water.” Nevertheless, without evidence that Street exer-
18260 TEAM ENTERPRISES v. WESTERN INVESTMENT
cised actual control over Team’s disposal, the options (or lack
thereof) available to Team are irrelevant for purposes of
arranger liability.
c
Team next argues that Street’s “employees dumped PCE
down the drain in Team’s stores,” when they visited the stores
to take titration samples. The only reference in the record to
such activity, however, comes from Jones’s deposition. When
Street’s counsel asked Jones where he recalled seeing Street
employees dumping wastewater down the drain, Jones
answered, “McHenry,” referring to a store on McHenry Ave-
nue. Jones’s own testimony fails to establish that any Street
employee dumped PCE down the drain at the Orangeburg
Avenue store at issue in this case.4
The other pieces of evidence offered by Team in its opposi-
tion to Street’s motion for summary judgment similarly fail to
establish that Street exercised any actual control over Team’s
disposal of PCE. The deposition of Street’s vice president,
Vincent Romanco, establishes only that Street’s manual
instructed Team to dispose of the wastewater into a bucket
and that Street did not tell Team what to do with the contents
of the bucket. And the internal memorandum authored by
Manfred Wentz, Street’s Vice President for Research and
Development and Environmental Affairs, establishes only that
Street knew that many dry cleaners disposed of PCE-laden
wastewater by pouring it down the drain.
[12] Team does not point to any evidence in the record that
Street hooked up the Rescue 800 to the sewer, that Street con-
4
We do not decide whether a party could ever be held liable as an
arranger on the ground that its employees disposed of small samples of a
hazardous substance once every month or so. But even if we were to
accept such a theory of liability, the evidence in the record fails to create
a genuine dispute as to any material fact with respect to this claim.
TEAM ENTERPRISES v. WESTERN INVESTMENT 18261
tinued to own the Rescue 800 used in Team’s store, that Street
owned or possessed the PCE that Team disposed of, that
Street made dumping wastewater down the drain a condition
of its sales contract with Team, or that Street employees
poured wastewater down the drain at Team’s stores. In short,
there is a dearth of evidence indicating that Street exercised
actual control over Team’s disposal.
C
[13] Accordingly, we conclude that Team has not pres-
ented evidence giving rise to a genuine dispute as to any
material fact with respect to its CERCLA claim.
III
[14] Team also argues that the district court erred by grant-
ing summary judgment to Street on Team’s nuisance claim.
California defines a “nuisance” as “[a]nything which is injuri-
ous to health, . . . or is indecent or offensive to the senses, or
an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property.” Cal. Civ.
Code § 3479. Chemical contamination of the soil that affects,
or threatens to affect, water quality constitutes a nuisance.
Selma Pressure Treating Co. v. Osmose Wood Preserving Co.
of Am., Inc., 271 Cal. Rptr. 596, 607 (Ct. App. 1990), over-
ruled on other grounds by Johnson v. Am. Standard, Inc., 179
P.3d 905, 913-14 (Cal. 2008). A person may be held liable
under nuisance law if he “ ‘creat[es] or assist[s] to create and
maintain the nuisance.’ ” Id. (quoting Hardin v. Sin Claire, 47
P. 363, 364 (Cal. 1896)); see also City of Modesto Redev.
Agency v. Superior Court, 13 Cal. Rptr. 3d 865, 872 (Ct. App.
2004) (“[L]iability for nuisance does not hinge on whether the
defendant owns, possesses or controls the property, nor on
whether he is in a position to abate the nuisance; the critical
question is whether the defendant created or assisted in the
creation of the nuisance.”).
18262 TEAM ENTERPRISES v. WESTERN INVESTMENT
[15] Here, it is undisputed that chemical contamination of
the soil, which is “injurious to health,” Cal. Civ. Code § 3479,
has occurred. The viability of Team’s claim therefore depends
on whether Street “creat[ed] or assist[ed] to create and main-
tain the nuisance.” Selma Pressure Treating, 271 Cal. Rptr. at
607. A defendant may be liable for assisting in the creation of
a nuisance if he either (1) affirmatively instructs the polluting
entity to dispose of hazardous substances in an improper or
unlawful manner, see City of Modesto, 13 Cal. Rptr. 3d at
874-75, or (2) manufactures or installs the disposal system,
see Selma Pressure Treating, 271 Cal. Rptr. at 607. Mere but-
for causation, on the other hand, does not give rise to nuisance
liability. See Redevelopment Agency of the City of Stockton v.
BNSF Ry. Co., No. 09-16585, ___ F.3d ___ (9th Cir. 2011)
(holding that a railroad could not be held liable for nuisance
that resulted when pollution traveled through a french drain
installed by the railroad because the drain was “designed to
move water, not contaminants”).
[16] Although Team presented evidence that Street
instructed it to pour wastewater containing PCE into a bucket,
there is no evidence in the record that Street “instructed the
dry cleaners to set up their equipment to discharge solvent-
containing wastewater into the drains and sewers,” or that
Street “gave dry cleaners instructions to dispose of spilled
[PCE] on or in the ground.” City of Modesto, 271 Cal. Rptr.
3d at 874. And despite Team’s protestations that once waste-
water from the Rescue 800 had been poured into a bucket
there was no alternative but to pour it down the drain, Team’s
alleged lack of alternatives do not indicate that Street engaged
in the “kinds of affirmative acts or instructions” that would
“support a finding that [Street] assisted in creating a nui-
sance.” Id.
[17] Moreover, it is clear from the record that the Rescue
800 is not a disposal system. The Rescue 800 was not
designed to route wastewater from the dry cleaning machines
to the sewer; it was designed to filter and to recycle used PCE
TEAM ENTERPRISES v. WESTERN INVESTMENT 18263
that otherwise would have been lost. We therefore agree with
the district court’s conclusion that Team failed to present evi-
dence giving rise to a genuine dispute as to any material fact
with respect to its nuisance claim.
IV
[18] Finally, Team argues that the district court erred by
granting summary judgment to Street on Team’s trespass
claim. A trespass is “an invasion of the interest in the exclu-
sive possession of land.” Capogeannis v. Superior Court, 15
Cal. Rptr. 2d 796, 799 (Ct. App. 1993) (citation and internal
quotation marks omitted). “The essence of the cause of action
for trespass is an ‘unauthorized entry’ onto the land of anoth-
er.” Martin Marietta Corp. v. Ins. Co. of N. Am., 47 Cal. Rptr.
2d 670, 681 (Ct. App. 1995) (citation and internal quotation
marks omitted). In California, “it is established that trespass
. . . may include . . . invasion by pollutants.” Id. at 682.
[19] Even though the action causing the entry of pollutants
does not have to be intentional, the entry must be “unautho-
rized” to support a cause of action for trespass. Id. at 681; see
also Cnty. of Santa Clara v. Atl. Richfield Co., 40 Cal. Rptr.
3d 313, 333 (Ct. App. 2006) (“Where the owner of property
voluntarily places a product on the property and the product
turns out to be hazardous, the owner cannot prosecute a tres-
pass cause of action against the manufacturer of that product
because the owner has consented to the entry of the product
onto the land.”). Team, however, did not present any evidence
that either the Rescue 800 or the PCE entered the property
without Team’s consent. Moreover, Team’s employees con-
taminated the soil by pouring the wastewater down the drain,
and “one cannot commit an actionable interference with one’s
own possessory right.” Capogeannis, 15 Cal. Rptr. 2d at 799.
Because Team’s contamination of the land was not a trespass
18264 TEAM ENTERPRISES v. WESTERN INVESTMENT
against itself, Street may not be held liable for assisting in a
trespass.5
We therefore conclude that Team has failed to present evi-
dence creating a genuine dispute as to any material fact with
respect to its trespass claim.
V
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
ST. EVE, District Judge, specially concurring:
I am pleased to join the majority’s well-reasoned and
insightful opinion. I write separately to explain my view that
CERCLA, by its plain language, should not apply to this case.
The Supreme Court has explained that courts are to con-
sider “the plain language of [CERCLA]” and to give unde-
fined terms in the statute their “ordinary meaning.”
Burlington N., 129 S. Ct. at 1879. The arranger-liability provi-
sion of the Act covers “any person who by contract, agree-
ment or otherwise arranged for disposal or treatment . . . of
hazardous substances owned or possessed by such person, by
any other party or entity, at any facility . . . owned or operated
by another party or entity and containing such hazardous sub-
5
Team’s reliance on Newhall Land & Farming Co. v. Superior Ct., 23
Cal. Rptr. 2d 377 (Ct. App. 1993), is misplaced. In Newhall, the court held
that the plaintiff had stated a claim for trespass under a “continuing tres-
pass theory.” Id. at 383 (“A trespass may be committed by the continued
presence on the land of a structure, chattel, or other thing which the actor
has tortiously placed there, whether or not the actor has the ability to
remove it.” (citation and internal quotation marks omitted)). Such a theory
has no relevance to this case because Street did not tortiously place the
Rescue 800 or the PCE on Team’s property.
TEAM ENTERPRISES v. WESTERN INVESTMENT 18265
stances.” 42 U.S.C. § 9607(a)(3) (emphasis added). To be lia-
ble under this provision, therefore, an arranger must have
owned or possessed the “hazardous substance.”
The plain language of the statute indicates that a liable “ar-
ranger” must own or possess the hazardous substance.
Although Ninth Circuit precedent forecloses this interpreta-
tion for the purpose of the present case, see Pakootas v. Teck
Cominco Metals, Ltd., 452 F.3d 1066, 1079-82 (9th Cir.
2006), I am convinced that the better construction of the
arranger-liability provision of CERCLA is as I have indicated.
In this case, the undisputed evidence reveals that Street did
not, at any point, own or possess the relevant PCE. Accord-
ingly, Street is entitled to summary judgment on Appellant’s
CERCLA claim.