1 A. Bar Çalpello, CSB No. 037835 Leila J.Noë , CSB No. 114307 2 Troy A. Thielemann, CSB No. 174276 CAPPELLO & NOËL LLP 3 831 State Street Santa Barbaran California 93101 4 Telephone: (ö05) 564-2444 Facsimile: (805) 965-5950 5 E-mail: abc~cappellonoeI.com 6 Tina B. Nieves, CSB No. 134384 Hector G. Ganced99 CSB No. 132139 7 James M. Kenna, LSB No. 209961 GANCEDO & NIEVES LLP 8 144 W. Colorado Boulevard Pasadena, California 91105 9 Telephone: (626) 685-9800 Facsimile: (626) 685-9808 10 Attorneys for Plaintiffs 11 12 UNITED STATES DISTRICT COURT 13 CENTRA DISTRICT OF CALIFORNIA 1 15 LAWRNCE O'CONNOR, et aI., 16 Plaintiffs, 17 v. 18 19 BOEING NORTH AMERICAN, INC" et aI., Cases No. CV 97-1554 DT (RCx); PLAINTIFFS' MEMORAUM IN SUPPORT OF MOTION FOR SUMMAY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZAROUS ACTIVITIES D,ate: AUglst 8, 2005 20 Defendants. 21 Time: 10:00 a.m. Place: Couroom 880 (Roybal Bldg.) 22 AND RELATED ACTIONS 23 2 25 26 27 28 02262.001 - 124543 Judge: Bon. Dickran tevrzian 2 PAGE NO. TABLE OF CONTENTS 1 3 1. INTRODUCTION ..,.......................................... . .. 1 4 II, STATEMENT OF FACTS ............,............................ 2 5 A. Nuclear Activity at SSFL ................................ . .. 2 6 B. Area 1 Bur Pit at SSFL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 1. 7 8 2. 9 Defendants bured numerous hazardous substances at an open air bur pit at SSFL. . . . . . . . . . . . . . . . .. 3 The burnings were conducted under cover of night and produced heavy smoke that drfted to the surrounding neighborhoods. ......................... 4 10 3. 11 4. 12 Defendants used high-p'owered rifles to punctue containers anèl release deadly toxins. . . . . . . . . . . . . .. 4 SSFL Firemen were tasked with collecting body parts after a deadly explosion. ...................... 4 13 5. 1 Defendants officially characterized the burn pit as a "waste pile," yet continued their ultrahazardous conduct there. ........................... 5 15 C. Reclaimed Contaminated Water to Cool Rocket Test 16 Stands .................................................. 5 17 1. mechanism. ......................................... 5 18 2. The cooling process produced toxic clouds that 19 drfted to tfe surounding neighborhoods and bured employees. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6 20 3. Defendants burned excess rocket fuel and other 21 22 23 2 Defendants used contaminated water to cool rocket ep.gine test stands as a cost saving waste in catch ponds at SSFL. . . . . . . . . . . . . . . . . . . . . . . . . . .. 6 III. APPLICABLE LEGAL STANDARS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 IV. ARGUMENT...........................................,....... 8 25 A. Cati:(ollia imposes strict liability for ultrahazardous activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8 26 B. The business of nuclear energy constitutes an ultrahazardous activity. . , . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . .. 10 27 28 02262.001 - 124543 1. An analysis of defendants' nuclear operations 1 under California law necessitates a conclusion that they are strctly liable for the 1959 nuclear 2 incident. ........................................... 10 3 2. Other authorities also conclude that nuclear operatlons are unquestionably ultrahazardous 4 5 activities. .......................................... 14 C. The use of contaminated water to cool rocket engines and the buring of dangerous chemicals in open pits constitute 6 7 ultrahazardous activities. .................................. 18 V. CONCLUSION ................................................ . 25 8 9 10 11 12 13 1 15 16 17 18 19 20 21 22 23 2 25 26 27 28 02262.001 - 124543 11 TABLE OF AUTHORITIES 1 PAGE NO. 2 3 FEDERA CASES 4 Anderson v. Liberty Lobby, Inc. 5 Cf Fisher v. Dees 6 7 8 9 10 477 U.S. 242 (1986) ............................................ 7 794 F.2d 432 (9th Cir. 1986) ..................................... 7 Carolina Environmental Study_Group v. United States . 431 F.Supp. 203 (W.D.N.C. 1977) ............................... 15 Chavez v. Southern Pacifc Transp. Co. 413 F.Supp. 1203 (B.D. Cal. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8 Cincinnati Gas & Electric Co, v. General Elec. Co, 656 F.Supp. 49 (S.D. Ohio 1986) . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. .. 14 11 Crawfard v. National Lead Co. 784 F.Supp. 439 (S.D. Ç)hio 1989) . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. 14 12 13 Daigle v. Shell Oil Co. 972 F.2d 1527 (10th cir. 1992) . . . . . . . , . . . . . . . . . . , . . . . . . . . . . . . . . .. 22 1 15 16 17 18 19 20 21 22 23 2 25 Guebara v. Allstate Ins, Co. 237 F,3d 987 (9th Cir. 2001) ..................................... 7 Hook v. Lockheed Martin Co!"p. (In re Burbank Envtl. Litig.) 42 F.Supp. 2d 976 (C.D. Cai. 1998) . . . . . . , . . . . . . . . . . . . . , . . . . . .. . .. 21 In re Hanford Nuclear Reservation Litig. 292 F.3d 1124 (9th Cir. 2002) ................................... 12 Moore v. R. G. Industries, Inc. 789 F.2d 1326 (9th Cir. 1986) ........................,........... 8 Silkwood v. Kerr-McGee Corp. 667 F.2d 908 (10th Cir. 1981) .........................,...... 15, 16 Updike v. Browning-Ferris, Inc, 808 F.Supp. 338 (W.D.La. 1992) .........,............,.......... 22 White v, Lee 227 F.3d 1214 (9th Cir. 2000) ..................,................. 7 STATE CASE 26 Ahrens v, Syperior Court 197 CaI.App. 3d 1134 (1988) . . .. , . , . . . , . . .. . .. . , . . , . .. . .. .. 9, 10,22 27 28 Alonso v. Hills 95 CaI.App. 2d 778 (1950) ..........' , . , , . . . . . . . . . . . .. .. . .. .. ... 23 02262.001 - 124543 ii 1 Balding v. Stutsman 2 246 CaI.App.2d 559 (1966) ...................................... 8 3 Bennett v. Mallinckrodt, Inc. 698 S.W.2d 854 (1985) .. . .. .. .. .. .. .. .. .. .. . .. . . . .. .. . .. .... 16, 17 4 Edwards v. Post Transportation Co. 5 228 CaI.App.3d 980 (1991) .................................... 8, 9 6 Fallowfield v. Strunk 23 EnvtI.L.Rep. (Envtl.L.Inst.) 20, 119 (E.D.Pa., 1992) ............. ~ .. 9 7 Garcia v. Estate of Norton 8 183 CaI.App.3d 413 (1986) ..................................... 19 9 Goodwin v, Reilley 176 CaI.App.3d 86 (1985) . . . .. . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . .. 10 1 Hulsey v. Elsinore Parachute Center 11 168 Cai. App. 3d 333 (1985) ..................................... 8 12 Luthringer v. Moore 31 Ca1.2d489 (1948) ..................................... 7-11,24 13 1 McGrath v, Basich Bros. Constr. Co. 7 CaI.App.2d 573 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 15 McKenna v. Pacifc E. R. Co, 104 Cal.App. 538 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 16 Pierce v. Pacific Gas & Electric Co. 166 CaI.App.3d 68 (1985) .. . .. . .. . . .. .. . .. . . .. . . .. .. . . .. . .. ... 8,21 17 18 19 20 21 22 23 2 25 26 Potter v. Firestone Tire & Rubber Co, 6 Ca1.4th 965 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Prospect Industries Corp. v, Singer Co. 569 A.2d 908 (N.J. 1989) .......................................22 SKF Farms v. Superior Court 153 Cal.App.3d 902 (1984) ................................... 9, 10 Smith v, Lockheed Propulsion Co. 247 Cal.App. 2d 774 (1967) ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24 T & E Indus., Inc. v. Safety Light Corp. 587 A.2d 1249 (N.J. 1991) ..,.."..,...,........................ 15 Travelers Indemnity Co. v. City of Redondo Beach 28 CaI.AppAth 1432 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. 9 27 28 02262.001 - 124543 iv 1 FEDERA STATUTES 2 42 U.S.C. § 2014(hh) . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . .. 7 3 42 U.S.C. § 7384(a)(1) .............................................. 17 4 5 FEDERA REGULATIONS 6 10C.F.R. § 20.l(c) .............................................. 16,17 7 8 OTHER AUTHORITIES 9 Prosser, The Law of Torts, §78, at 516 (4th ed. 1971) ................... 14, 15 1 Restatement of Torts (Second) §5l9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9 Restatement of Torts (Second) §520 . . . . . . . . . . . . . . .. 9, 11-14, 18-20,22,23,25 11 12 13 1 15 16 17 18 19 20 21 22 23 2 25 26 27 28 02262.001 - 124543 v 1 I. INTRODUCTION 2 3 Like the law in virtally every American jurisdiction, California law imposes 4 strict liability on actors whose ultrahazardous activities or abnormally dangerous 5 conduct causes harm. Defendants' ultrahazardous conduct at issue here is the 6 following: (1) Defendants' operation of experimental nuclear reactors at the Santa the 1959 nuclear incident there; . 7 Susana Field Laboratory ("SSFL"), specifically toxic materials as a means of disposal in the 8 (2) Defendants' open air burning of rocket engines with water 9 Area 1 Burn Pit at SSFL; and (3) Defendants' cooling of 10 contaminated with deadly toxins. Plaintiffs seek to summarily adjudicate the issue 11 of Defendants' strct liability for claims arsing from these three specific tyes of 12 ultrahazardous activities conducted by Defendants. 13 As a result of these abnormally dangerous activities, massive quantities of 14 radioactive and chemical carcinogens were released over a vast geographic area in Southern California. While Defendants 15 the San Fernando and Simi valleys of 16 themselves understood at the time that the health hazards from human exposure to 17 these radioactive and chemical materials were grave, Plaintiffs were unaware of 18 these hazardous releases, but Plaintiffs are not addressing the issues of exposure, 19 causation or damages in the instant motion. Rather, Plaintiffs' motion only 20 addresses the ultrahazardous nature of Defendants' conduct in conducting nuclear 21 power experiments, in burning hazardous chemicals and carcinogens in open pits, 22 and in pouring a cocktail of hazardous contaminated water onto hot rocket engines 23 in order to cool them. The facts of this case resoundingly satisfy all the settled 2 criteria for strict liability of an abnormally dangerous activity, and California law 25 supports that conclusion. 26 Plaintiffs respectfully request partial summary judgment on this issue of 27 liability, clearing the way for what Defendants have long said they wanted - an whether their releases caused Plaintiffs' injuries. 28 adjudication of 02262.001 - 124543 1 OF 1 II. STATEMENT FACTS 2 3 Defendants admit that their operations at the "Rocketdyne Facilities" (defined 4 to include the SSFL, the Canoga Facility and De Soto Facility) included the use or 5 production of volatile organic compounds, dioxin compounds, various rocket and 6 jet fuels and propellants, known carcinogens and spent rocket engine fueL. (Fact Law in 7 No.1 to Plaintiffs' Statement of Uncontroverted Facts and Conclusions of 8 Support of Motion for Summar Adjudication of Strct Liability for Ultra Defendants' conduct set forth 9 Hazardous Activities ("PSUF").) The three areas of 1 0 below are the basis of Plaintiffs' claim for strict liability based upon ultrahazardous 11 activities at issue here. 12 13 A. Nuclear Activity at SSFL 1 Between the 1950's and 1980's, nuclear activities at SSFL involved the use, radioactive materials, and they included the 15 storage, generation, and/or disposal of 16 operation of experimental nuclear reactors, the staging and storage of nuclear fuel 17 and the operation of a Hot Laboratory to disassemble and to inspect irradiated fuel 18 at SSFL. (PSUF No.2 through 12.) 19 During the planning stages of the Sodium Reactor Experiment ("SRE") at 20 SSFL, the emergency exposure program regarding the Analysis of the Body 21 Deposition of Presumed Aerosols Resultant from a Nuclear Incident recognized that 22 the emergency exposure adopted may be exceeded with fair probability under 23 certain meteorological conditions. (PSUF No, 24.) In 1958, although referenced as 2 a "remote possibility," it was recognized that "(i)n the case of an uncontrolled 25 withdrawal of the safety rods and a malfunction of all other safety devices, a 26 condition which cannot be proved impossible, fuel rod temperatures would start to 27 rise, thus increasing the coolant temperature and decreasing the coolant heat transfer 28 capabilities. An increasingly rapid rise in fuel temperature could then cause melting 02262.00 i - i 24543 2 1 2 3 4 5 offuel." (PSUF No. 25.) That all risks could not be eliminated from the operation of the SRE was recognized at that time. Defendants admit that on July 13, 1959, the SRE had a "power excursion" the reactor fuel assemblies of and that in July 1959, some of the SRE reactor partially melted. (PSUF No. 15.) During Power Run 14 ofSRE, which took place 6 between July 12 and July 26, 1959, an incident occurred in which 13 of 43 fuel 7 channels were damaged; severe overheating of some of the fuel elements is known 8 to have existed; many of the fuel slugs were badly swollen, cracked and spongy; and 9 ten of the thirteen fuel assemblies were found to be broken and separated into 10 this nuclear multiple pieces. (PSUF No. 16-20,) As to the consequences of 11 incident at SRE, the investigations into the causes conducted concluded that "5,000 12 to 10,000 curies of fission product activity were unexpectedly released to the 13 primary sodium system." (PSUF No. 21.) 1 In addition, Defendants admit that a Tetralin Explosion occurred at SSFL in fission gas occurred within the AE-6 reactor in March of 15 1959, that a release of 16 1959, that radioactively contaminated water was leaked in the 1960's and 1970's, 17 and that radiological contamination was found in a leach field at SSFL in 1976. 18 (PSUF No. 13, 14,22,23.) 19 As further discussed below, these nuclear operations at SSFL constituted an 20 ul trahazardous acti vi ty, 21 22 B. Area 1 Burn Pit at SSFL 1. Defendants burned numerous hazardous substances at an 23 open air burn pit at SSFL. 24 25 At least through the early 1970's, an open air burn pit was located in the 26 Southwest corner of Area 1, bordering the SSFL buffer zone at SSFL ("Area 1 Burn 27 Pit"). (PSUF No, 28,) Even though the legal burning of combustible refuse was 28 essentially eliminated in the Los Angeles Basin on or before September 1955, 02262.001 - 124543 3 1 Defendants burned hazardous wastes and chemicals in the Area 1 Bur Pit, 2 including propellant waste chemicals, JP4, RP 1 fuel (kerosene), trethyl aluminum, 3 trethyl boron, hydrazine, unsymetrcal dimethyl hydrazine (UDMH), nitrogen 4 tetroxide (NTO), oils, trchloroethylenes, hydrazine and magnesium chips, along 5 with materials that were contained in unmarked and unlabeled barrels. (PSUF No. 6 30, 32, 33, 44.) 7 2. The burnings were conducted under cover of night and 8 produced heavy smoke that drifted to the surrounding 9 neighborhoods. 10 Employees conducting the burnings in the Area 1 Burn Pit were instrcted to 11 burn them at night. (PSUF No. 37, 38,) The materials burned produced dense 12 heavy smoke of various colors, and a large plume of smoke would rise up into the 13 air and be carred off with the wind, which was witnessed to drift towards the 14 populated surrounding areas, (PSUF No, 39,40.) Later, the highest levels of the Area 1 Burn Pit. (PSUF No. 31.) 15 dioxins at SSFL were found in the vicinity of 16 3. Defendants used high-powered rifles to puncture containers 17 and release deadly toxins. 18 NTO presented the firemen at SSFL with additional problems when it was 19 pressurized and contained in a "K" bottle, which is a metal cylinder about four and a 20 half to five feet tall, similar to the oxygen tanks used in hospitals. The firemen 21 would place the K bottles in holes they dug in the hillside and then from a distance 22 shoot at them with a high-powered rifle to puncture the containers. The vaporized 23 NTO would then rise up into the air forming a yellowish-orange cloud that would 24 drift away depending on the direction the wind was blowing. (PSUF No. 41.) 25 4. SSFL firemen were tasked with collecting body parts after a 26 deadly explosion. 27 Several explosions and accidents occurred at SSFL which resulted in 28 fatalities. One such explosion kiled a number of employees, SSFL Firemen were 02262.001 - 124543 4 1 responsible for conducting a head count of casualties. Human remains were spread 2 over a large area where the explosion took place and the fireman had to collect the 3 body parts for removaL. (PSUF No. 42.) 4 5. Defendants officially characterized the Burn Pit as a "waste 5 pile," yet continued their ultrahazardous conduct there. 6 In an EP A application, Defendants improperly characterized the Burn Pit as a 7 "waste pile" and failed to disclose that the Burn Pit would be used for open pit 8 burning of hazardous waste. They also failed to complied with certain requirements 9 and were not authorized to store or destroy hazardous waste at the Burn Pit. Despite 10 never having been issued the requisite permt, Defendants routinely utilized the 11 Bum Pit to detonate gaseous propellants in cylinders and advanced scrap 12 propellants, and unlawfully stored numerous drums of radioactive hazardous waste. 13 (PSUF No, 43,) propellant waste and chemicals in 14 As further discussed below, the burning of 15 the Area 1 Burn Pit at SSFL constituted an ultrahazardous activity, 16 17 C. Reclaimed Contaminated Water to Cool Rocket Test Stands 18 1. Defendants used contaminated water to cool rocket engine 19 test stands as a cost saving mechanism. 20 Starting in 1957, "reclaimed" water was used at SSFL. (PSUF No. 47.) The 21 contaminants released into the reservoir of the "reclaimed" water included, but was 22 not limited to, the following: Kerosene, alcohol, nitric acid, sulphuric acid, 23 hydrochloric acid, caustic soda, residual fuel oil, engine fuel and solvents, including 24 kerosene and trichloroethylene, lubricating oils, and hydrochloric acid, (PSUF No. 25 48,49.) In 1958, after passing from a common reservoir at SSFL where the 26 effluents were mixed together, a "reclamation system (had) been constrcted at the 27 location which recycled the water to the two large engine test facilities for reuse as 28 coolant water." (PSUF No, 52.) 02262.00 i - 124543 5 SSFL employees present during rocket engine test firings at SSFL witnessed 1 2 excess coolant, fuel and chemicals used to flush the rocket engines being allowed to 3 flow downhill into collection ponds, along with water, and the resulting mix from 4 these collection ponds was used to fill the large tanks located near the rocket test 5 stands, to be reused in subsequent coolings. (PSUF No. 53.) The primary 6 justification for using reclaimed water for cooling the rocket test stands was cost 7 savings. (PSUF No. 50.) 2. The cooling process produced toxic clouds that drifted to the 8 surrounding neighborhoods and burned employees. 9 When the water was poured into the deflectors at the base of the test stands, 10 11 the cloud rose skyards and was carred off by the wind in the direction of the 12 nearby neighborhoods. (PSUF No. 54,56.) When the cloud from the rocket engine test firing did not move away but 13 14 instead rained down on top of the SSFL, the firemen experienced burning sensations 15 on their arms and neck and required medical treatment. In addition, their unifonns 16 were burned by the particulates falling from the sky, and the vehicles in the parking 17 lots at SSFL were covered with film. (PSUF No. 57,) 3. Defendants burned excess rocket fuel and other waste in 18 19 catch ponds at SSFL. 20 Defendants also burned, at night, excess rocket fuel and other waste that had 21 accumulated on the surface of the various catch ponds located at SSFL. The rocket 22 fuel and other waste in the catch ponds resulted from the rocket engine test firings. 23 After they burned off the excess fuel from the surface of the pond, the water was 24 recycled back into the cooler tanks to be used again to cool the rocket engines when 25 they were test fired the next time, The firemen assigned to do the burning were not 26 given any specialized training in how to handle such assignment, other than being 27 told it could only be done at night. (PSUF No. 58.) 28 III 02262.001 - 124543 6 1 On the nights when assigned the duty to burn the catch ponds, the fireman 2 would check the ponds at SSFL to see how much rocket fuel had accumulated on 3 the surface. The rocket fuel would not burn on its own, so they would pour gasoline 4 on the rocket fuel stain to get it started and then stand back and wait for it to bum 5 out. The fire produced heavy black smoke which rose into the air and was carred smoke did not by the wind currents. On the few occasions when the cloud of 6 off 7 move away from overhead, the firemen would feel particulates rain back down on 8 them. (PSUF No. 59.) 9 As further discussed below, the use of contaminated water to cool the rocket 10 engines at SSFL constituted an ultrahazardous activity. 11 12 III. APPLICABLE LEGAL STANDARDS 13 Under Fed. R, Civ. P. 56(c), a district court may award a partial summary 1 judgment that decides only the issue ofliability. White v. Lee, 227 F.3d 1214, 1240 15 (9th Cir. 2000). The distrct court, of course, must determne whether there are any 16 genuine issues of material fact for tral. Guebara v. Allstate Ins. Co., 237 F.3d 987, 17 992 (9th Cir. 2001). The availability of summary judgment turns on whether a jury 18 question is presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 (1986). 19 No jury question is presented here. The determination whether a particular 20 activity is ultrahazardous and subject to strct liability is a question oflaw to be 21 determined by the Court. Luthringer v. Moore, 31 Ca1.2d 489,496 (1948). Further, 22 the substantive rules for decision in a Price-Anderson action are derived from state 23 law. 42 U.S.C. § 20l4(hh). 24 Because no potential jury question is at issue regarding the nature of the 25 ultrahazardous activity, the Court is not required to weigh the evidence in the light 26 most favorable to the nonmoving party. Rather, the Court may grant this motion if 27 its evaluation of the evidence supports strict liability in light of Cali fomi a law. Cf 28 Fisher v. Dees, 794 F,2d 432, 436 (9th Cir. 1986) ("because. , , these judgments are 02262.001 - 124543 7 . 1 legal in nature, we can make them without usurping the role of the jury"). 2 Furthermore, the core facts on which the Court's determnation depends are not in 3 genuine dispute. 4 5 iv. ARGUMENT 6 7 A. California imposes strict liability for ultrahazardous activities. 8 Under California law, certain activities under certain conditions are so 9 hazardous to the public generally and occur so infrequently that liability is imposed 10 on persons who carr on these activities even in the absence of negligence, building with 11 Luthringer v. Moore, supra, 31 Ca1.2d at 498-500 (fumigation of 12 poisonous gas is ultrahazardous activity); Balding v. Stutsman, 246 Cal.App.2d 559, 13 564 (1966) (use of explosives in or near residential area is ultrahazardous activity); 14 see also Chavez v. Southern Pacifc Transp. Co., 413 F.Supp. 1203 (E.D. Cal. 1976) 15 (transportation of 16 "The doctrine of bombs by common carrier is ultrahazardous activity). ultrahazardous activity provides that one who undertakes an 17 ultrahazardous activity is liable to every person who is injured as a proximate result the amount of care he uses." Pierce v, Pacifc Gas & 18 of that activity, regardless of 19 Electric Co., 166 Cal.App.3d 68,85 (1985). 20 '" An activity is ultrahazardous if it (a) necessarily involves a risk of serious 21 harm to the person, land or chattels of others which cannot be eliminated by the 22 exercise of the utmost care, and (b) is not a matter of common usage. . ,'" 23 Luthringer v. Moore, supra, 31 Ca1.2d at 498; see also, Edwards v. Post 24 Transportation Co., 228 Cal.App.3d 980 (1991), Moore v. R.G. Industries, Inc., 789 25 F,2d 1326, 1328 (9th Cir. 1986), citing Hulsey v. Elsinore Parachute Center, 168 26 CaL. App, 3d 333,345 (1985). 27 An activity is a matter of common usage if it is customarily carried on by the mankind or by many people in the community; it does not cease to be 28 great mass of 02262.001 - i 24543 8 1 so because it is carried on for a purpose peculiar to the individual who carries it on. 2 Certain activities may be so generally carried on as to be regarded as customary, 3 such as the driving of an automobile, and so are considered a matter of customary 4 usage and not ultrahazardous. Luthringer v. Moore, supra, 31 CaL.2d 489 at 498. 5 Section 519 of Torts provides strct liability for the Restatement (Second) of 6 damages resulting from an abnormally dangerous activity. Section 520 sets forth 7 six factors to be considered in determining whether an activity is abnormally 8 dangerous: 9 1. Existence of a high degree of risk of some harm to the person, land or chattels of others; 10 the harm that results from it will be great; 11 2. Likelihood that 12 3. Inability to eliminate the risk by the exercise of 13 4. Extent to which the activity is not a matter of common usage; 14 5. Inappropriateness of the activity to the place where it is carred on; 15 16 reasonable care; 6. Extent to which its value to the community is outweighed by its dangerous attributes. 17 18 Ahrens v. Superior Court, 197 CaL. App. 3d 1134, 1142-1143 fn. 5 (1988). See, 19 also, Edwards v. Post Transportation Co., supra, 228 CaI.App.3d at 983-984 20 (applying criteria under California law); SKF Farms v. Superior Court, 153 21 Cal.App.3d 902 (1984); Travelers Indemnity Co. v. City of Redondo Beach, 28 22 Torts § 520 Ca1.AppAth 1432, 1444 (1994) (determining Restatement (Second) of 23 applies to ultrahazardous question but cannot be determined on demurrer); 2 Fallowfield v. Strunk, 23 Envt1.L.Rep. (Envtl.L.Inst.) 20,119 (E,D.Pa" 1992) (applying these criteria to hazardous waste case under Pennsylvania law). the factors be 26 25 "Under the Restatement view, it is not necessary that all of 27 present in a particular case," Ahrens v. Superior Court, supra, 197 Cal. App, 3d at 28 1143. "Whether California has completely adopted the Restatement view of 02262.001 - i 24543 9 1 abnormally dangerous activities has been the subject of scholarly comment. (See 1 2 Levy et aI., CaI. Torts (1987) § 7.04(1)(b), pp. 7-25.) However, some courts have is abnormally 3 treated the Restatement factors as relevant to a finding that an activity 4 dangerous." Ahrens v. Superior Court, supra, 197 Cai. App. 3d at 1143, fn. 6, 5 citing Goodwin v. Reilley, 176 CaI.App.3d 86, 91 (1985), SKF Farms v. Superior 6 Court, 153 CaI.App.3d 902, 906 (1984), and Luthringer v. Moore, supra, 31 Ca1.2d 7 489. 8 Plaintiffs separately address whether Defendants' nuclear related conduct 9 and non-nuclear conduct constitute ultrahazardous activities below. 10 i 1 B. The business of nuclear energy constitutes an ultrahazardous 12 activity. i 3 Words such as "radiation," "nuclear fission," or "the atom bomb," may send 14 shivers down a person's spine, The grave and unimaginable devastation which can 15 and has accompanied nuclear incidents are incomprehensible to most, and even 16 minor nuclear incidents can cause devastating injury to humans. Not surprisingly, 17 courts have generally recognized that the business of nuclear energy is an 18 ultrahazardous activity, and when nuclear materials cause personal injury, liability 19 should be imposed on manufacturers of such products without proof of fault. 20 Defendants' nuclear activities in the 1950's, which were admittedly experimental in 21 nature, fall even more squarely within the definition of an ultrahazardous activity. 22 1. An analysis of defendants' nuclear operations under 23 California law necessitates a conclusion that they are strictly 2 liable for the 1959 nuclear incident. 25 Nuclear operations, particularly in the 1950's which is at issue here, involved 26 a risk of serious harm to the person, land or chattels of others which cannot be 27 eliminated by exercise of utmost care; and nuclear operations cannot be considered 28 a matter of common usage by any twist of reason, California law and common 02262.00 I - 124543 10 1 sense necessitate a finding that Defendants' nuclear operations constitute an 2 ultrahazardous activity, making them strctly liable for an damaged to Plaintiffs 3 caused by the 1959 nuclear incident. the six factors in Section 520, that a high degree of 4 As to the first of risk of Torts § 520 states: 5 harm exist, Comment g to Restatement (Second) of 6 An activity that is abnormally dangerous ordinarily involves a 7 high degree of risk of serious harm to the person, land or chattels 8 of others. . . If the potential harm is sufficiently great, however, 9 as in the case of a nuclear explosion, the likelihood that it will 10 take place may be comparatively slight and yet the activity be 11 regarded as abnormally dangerous. 12 The release of radioactive substances manifestly poses a grave threat to 13 human health, Nor are the health dangers posed by Defendants' releases of 14 radioactive iodine from SSFL evident only in hindsight. Defendants even knew at 15 the time that their nuclear operations posed extreme hazards, which they could not 16 completely eliminated. (PSUF No. 24, 25.) Defendants were acutely conscious, 17 before operations at SSFL were even underway, of the high risk of serious bodily 18 harm that would be created by exposures to radioactive substances, and science had 19 already evolved sufficiently to have witnessed Hiroshima and to have studied its 20 health effects for more than a decade, 21 Regardless, no California case holds that a defendant must have actual 22 knowledge of the tre extent of the danger involved in proceeding with an 23 ultrahazardous activity. To the contrary, as stated in Luthringer v, Moore, supra, 31 24 Ca1.2d at 498, one who carries on an ultrahazardous activity is liable for injuries to a 25 person whom the actor reasonably should recognize as likely to be harmed by a 26 miscarriage of the ultrahazardous activity, even though "the utmost care is exercised 27 to prevent the harm." 28 III 02262.001 - 124543 11 1 As to the second factor, the likelihood that harm will be great, Comment g to 2 section 520 notes, "( s )ome activities, such as the use of atomic energy, necessarily har to others." The nature of 3 and inevitably involve major risks of these risks is 4 no mystery. "Radiation is capable of causing a broad range of illnesses, even at the 5 lowest doses. This has been recognized by'scientific and legal authority." In re 6 Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1127 (9th Cir. 2002), the Restatement comment on the third factor from section 520, 7 The authors of 8 the inability to eliminate risk through reasonable care, as follows: 9 There is probably no activity, unless it is perhaps the use of harm could not be 10 atomic energy, from which all risks of 11 eliminated by the taking of all conceivable precautions, and the 12 exercise of the utmost care, particularly as to the place where it is 13 carried on, 1 Restatement (Second) § 520, comment h, The authors of Section 520 cannot 15 conceive of an argument by which atomic energy would not fulfill the requirement 16 of an inability to eliminate all risks through reasonable care, nor can Plaintiffs. 17 While Defendants may attempt to vociferously maintain that they operated 18 the nuclear facilities at SSFL with the greatest care possible under the circumstances 19 (as Plaintiffs suspect they will), that argument is misplaced. This contention that 20 they were not negligent, yet the nuclear accident occurred in 1959, actually supports 21 Plaintiffs' position. Ifin fact Defendants were really as careful as they are bound to 22 contend and the accident stil occurred, then that is the exact scenario for which the 23 doctrine of ultrahazardous activities was created, Defendants cannot maintain that 24 SSFL was operated with all reasonable care and simultaneously argue that the 25 radioactive releases from SSFL could have been prevented through reasonable 26 precautions. All that is required under the third factor of section 520 is the inability 27 of eliminating the relevant risk through reasonable care - a condition amply 28 satisfied here, 02262.001 - i 24543 12 1 As to the fourth factor, that the conduct in question not be a matter of 2 common usage, common sense once again necessitates this finding. Plaintiffs need 3 not dwell on whether the operation of a nuclear reactor is a matter of common 4 usage, It certainly was not during the time periods at issue in this litigation, and the 5 1959 nuclear incident even occurred in the Sodium Reactor Experiment, emphasis 6 on experiment. (PSUF No.7.) No one could reasonably argue that any nuclear 7 experiment is a matter of common usage. 8 As to the fifth factor, inappropriateness of operation to the location, this 9 factor also weighs in Plaintiffs' favor. While the western border of the San 10 Fernando Valley in which SSFL was situated (PSUF No.1) may not have been an 11 urban center in the 1950's, it was a populated area and was not a remote wilderness 12 or desert area. Defendants are expected to assert that the SSFL site was selected 13 partly for its remoteness, prior to the plant's constrction and operation, from major 14 urban centers, Few locations may exist where releases from a nuclear site would 15 have fallen entirely on unpopulated areas, but SSFL did not lie in the "middle of 16 nowhere." Safer locations existed. 17 Regardless, the question is not whether Defendants should be exempted from 18 strict liability for carring on an activity which posed such vast dangers that no safer 19 location could readily be found in the entire continental United States, The choice 20 of an unsafe location for an abnormally dangerous activity should argue in favor of 21 strict liability in circumstances where significantly safer locations might have been 22 chosen, If an activity, however, wil inherently pose grave health risks to persons 23 residing in a large geographic area regardless of the location, then the pertinent 2 question should be whether the enterprise ought to bear the costs, when those health 25 risks materialize if the activity is undertaken anyway. 26 Factor six of Section 520 is the value to community versus dangerous 27 attributes of conduct, and Comment h to section 520 notes, "(t)he utility of (an 28 actor's) conduct may be such that he is socially justified in proceeding with his 02262.001 - i 24543 13 1 activity, but the unavoidable risk of har that is inherent in it (may) require() that it 2 be carred on at his peril, rather than at the expense of the innocent person who 3 suffers harm as a result of it." Plaintiffs expect that Defendants wil emphasize their 4 contrbution to nuclear experimentation and development, but Plaintiffs also suspect 5 that Defendants will not point out that their purpose in the business of nuclear 6 operations was profits. Their purpose in carrng out these experiments was purely 7 for business reasons. While some benefits to society generally may have occurred, 8 the entire national community was not subjected to the health risks created by 9 Defendants' radioactive release in 1959. That sacrifice was limited to citizens 10 residing downwind of SSFL, who did not knowingly or voluntarily take on that risk. 11 If injury to some was the necessary price for a some benefit to the many, the proper the benefit while compensating the injured. 12 course is to be glad of 13 2. Other authorities also conclude that nuclear operations are 1 unquestionably ultrahazardous activities. 15 Courts from around the country have held that industral operations and other human exposure to radioactive materials are abnormally 16 activities posing the risk of 17 dangerous and warant the imposition of strct liability. 18 One court succinctly stated, "Plaintiffs are correct in pointing out that the nuclear energy has been held to be 'an intrinsically ultrahazardous 19 business of 20 activity, '" Cincinnati Gas & Electric Co. v. General Elec. Co" 656 F.Supp, 49, 59 21 (S,D, Ohio 1986), citing Carolina Environmental Study Group v, United States, 431 22 F.Supp, 203,223 (W.D.N.C. 1977), rev'd on other grounds, 438 U,S. 59, 98 S.Ct. 23 2620,57 L.Ed.2d 595 (1978), See, also, Crawford v, National Lead Co., 784 24 F.Supp. 439, 442 (S.D. Ohio 1989) ("We have little difficulty in concluding that the 25 operation.., is an abnormally dangerous activity. ") 26 Professor Prosser explains that nuclear energy is an area "in which no court 27 wil, at last, refuse to recognize and apply the principle of strict liability." W. 28 Prosser, The Law of 02262.001 - 124543 Torts, §78, at 516 (4th ed. 1971). 14 1 In the landmark case of Silkwood v. Kerr-McGee Corp., 667 F .2d 908 (10th 2 Cir. 1981), rev'd in part on other grounds, 464 U.S. 238 (1984), the Tenth Circuit 3 did not hesitate to conclude that Oklahoma would apply strct liability doctrine to 4 releases of radioactive materials. Id., 667 F.2d at 921 ("We have no doubt 5 Oklahoma courts would apply strct liability to this case of escape of plutonium, a an area 'in 6 highly toxic and dangerous substance. . . . Nuclear energy is surely 7 which no court will, at last, refuse to recognize and apply the principle of strct Torts § 78, at 516 (4th ed. 1971)). 8 liability,'" quoting W. Prosser, The Law of North Carolina 9 The United States Distrct Court for the Western Distrct of 10 reached the same conclusion in Carolina Environmental Study Group v. United North Carolina have 11 States, 431 F. Supp. 203,223 (W.D.N.C. 1977) ("The courts of 12 not yet had the chance to apply the rule of strct liability to nuclear power plants. 13 However, the considerations that have led to the application of strct liability are all 14 present in the generation of nuclear energy. It is an intrinsically ultrahazardous 15 activity and, when done near large population centers, it is impossible to predict its consequences."), rev'd on other grounds, 16 with certainty the extent or severity of 17 438 U.S. 59 (1978). 18 In T&Elndus., Inc. v. Safety Light Corp., 587 A,2d 1249 (N.J, 1991), the radium tailings was 19 New Jersey Supreme Court held that the burial and disposal of 20 subject to strict liability based on an abnormally dangerous activity. See 587 A.2d at 21 1261 ("Radium has always been and continues to be an extraordinarily dangerous 22 substance, Although radium process has never been a common activity, the 23 injudicious handling, processing, and disposal of radium has for decades caused 24 concern; it has long been suspected of posing a serious threat to the health of those 25 who are exposed to it.") 26 Even the Supreme Court of Missouri, which applies a very narrow rule of 27 strict liability, has held that radiation contamination escaping from a nuclear facility 28 is an abnormally dangerous activity and that claims arising from nuclear-related 02262.001 - 124543 15 1 injuries warrant the application òf strct liability. "Theories of liability other than 2 strct liability may serve society better in resolving issues between parties when 3 normal danger is involved. These theories are not equally effective in the nuclear 4 industr," Bennett v, Mallinckrodt, Inc" 698 S.W.2d 854, 868 (1985), cert. denied, 5 476 U.S. 1176 (1986). The Bennett court explained its reasoning as follows: 6 The nuclear industr is unique in its inherent and, at present, 7 unrectifiable danger. It is regulated by the federal government. 8 Numerous safety standards have been set to ensure the public welfare, 9 but even with these precautions taken, the potential danger is still 10 enormous. Moreover, as previously noted, the safety standards are not 11 guarantees of absolute safety. Federal emission standard$ are only 12 guidelines which are based upon an inherently inexact balancing of 13 human and environmental risks against social benefits. See Silkwood, 14 485 F.Supp. at 581-82; Keyes v. Howarth, supra, at 541,568. See also 15 10 C.F.R. § 20.l(c). Each licensee is therefore requested to make every 16 reasonable effort to maintain radiation exposures and releases as low as 17 reasonably achievable. 10 C.F.R. § 20.l(c), The value of the nuclear 18 industr to society may be great, but the use of nuclear material is not 19 yet so common that strct liability should not be applied at this time. 20 This is the basis for the Restatement and Prosser recognizing the 21 nuclear industr is particularly suited for the application of strict Torts § 520, comments g, h 22 liability, See Restatement (Second of 23 (1977); Prosser, supra, § 78, at 516. In short, the nuclear industry 24 creates dangers as great as blasting operations, if not more so, and, 25 thus, if it fits the criteria established for strict liability, it should be 26 governed by those legal liabilities imposed upon blasting operations 27 because of its danger. 28 ¡d., 698 S,W.2d at 868-869. 02262.001 - 124543 16 1 Congress, for its part, has long assumed that the operations of the nuclear 2 weapons complex were sufficiently fraught with risk as to virtally assure the 3 imposition of strict liability under state law in case of a nuclear incident. See S. 4 Rep. No, 89-1605 (1966), reprinted in 1966 U.S. CODE CONGo & ADMIN. NEWS 5 3201,3206-07 (conscious policy decision not to establish statutory standard of 6 liability in Price-Anderson Act was based on knowledge of strict liability doctrne 7 and belief that courts would "ignore legal niceties and impose liabilities upon 8 someone on one ground or another in the event of a nuclear incident"); id. at 3209 9 ("existing Price-Anderson system rests on assumption" that courts would apply 10 "legal principles akin to those of strict liability in the event of a serious nuclear 11 incident"); see also 42 U.S.C. § 7384(a)(1) ("Since World War II, Federal nuclear law as activities that are 12 activities have been explicitly recognized under Federal 13 ultrahazardous. Nuclear weapons production and testing have involved unique 14 dangers, including potential catastrophic nuclear accidents that private insurance 15 carriers have not covered and recurring exposures to radioactive substances and 16 beryllium that, even in small amounts, can cause medical harm"). 17 California law and other authorities leave little room for any conclusion other 18 than that Defendants should be held strctly liable for any damages caused by their 19 nuclear activities, including the exposure to the 1959 nuclear incident at SSFL. 20 Plaintiffs have no doubt that Defendants wil find some way to minimize this broad 21 and widespread belief that personal injuries arising from nuclear operations are 22 appropriately subject to a rule of strict liability. What nevertheless appears to unite 23 most neutral observers is the belief that the technologies of atomic power and 24 atomic weaponr, though they have conferred benefits on society, are also 25 inherently fraught with the grave danger of bodily harm, That grave.danger 26 requires that the law should not be unduly grudging about affording compensation 27 to persons injured along the way, when things go less well than might have been 28 wished, but no better than feared. 02262.00 i - 124543 17 1 C. The use of contaminated water to cool rocket engines and the 2 burning of dangerous chemicals in open pits constitute 3 ultrahazardous activities. hazardous wastes in the open burning a broad spectrm of 4 Defendants' acts of water contaminated with hazardous using a cocktail of 5 air Area 1 Burn Pit and of 6 chemicals to cool rocket engine test stands constituted an obvious and extreme 7 health risk to those in the surrounding areas. These activities posed serious risks to 8 persons in the area through their exposure to these airborne carcinogens and burning chemicals and cooling with 9 hazardous chemicals. The practices of 10 contaminants were unsafe, and the dangers posed could only be eliminated by 11 desisting in these dangerous activities altogether, which Defendants chose not to do. 12 Further, burning dangerous chemicals and cooling hot engine test stands with 13 contaminated water was not a common use at the time, as the burning was even 1 prohibited by law and the cooling caused clouds of contaminated steam to form. these activities qualify as 15 (PSUF No, 41, 51, 53.) Consequently, both of 16 ultrahazardous activities, for which Defendants should be held strctly liable for any 17 resulting damages caused to Plaintiffs. 18 An analysis of the six criteria set forth in Section 520 reaches the same result, 19 that Plaintiffs' claim for strct liability based on ultrahazardous activity for the burning hazardous wastes in open air pits and of using a 20 Defendants' acts of 21 hazardous cocktail of contaminated water to cool rocket engine blocks is proper. risk with a high likelihood that the 22 These practices constituted a high degree of 23 harm would be great to those nearby due to the nature of the toxins. These practices 24 were also inappropriate to the location as a community resided nearby. Defendants' 25 dangerous burning of chemicals and cooling with the use of contaminated water did 26 not benefit the community, and in fact, these activities have required environmental 27 remediation and oversight of the governmental agencies in recent years, and they 28 have harmed the general population, as well as the Plaintiffs here. 02262.001 - i 24543 18 risk of the six factors in Section 520, that a high degree of 1 As to the first of 2 harm exist, Comment g to section 520 states: 3 An activity that is abnormally dangerous ordinarily involves a 4 .high degree of risk of serious harm to the person, land or chattels 5 of others. The harm threatened must be major in degree, and 6 sufficiently serious in its possible consequences to justify 7 holding the defendant strictly responsible for subjecting others to 8 an unusual risk. It is not enough that there is a recognizable risk 9 of some relatively slight harm, even though that risk might be the utility of 10 sufficient to make the actor's conduct negligent if he did not exercise 11 his conduct did not outweigh it, or if 12 reasonable care in conducting it. Norton, 183 Ca1.App.3d 413, 13 This factor was addressed in Garcia v. Estate of 1 418 (1986), where the defendant reprocessed waste oil to sell to refineries and 15 obtained a used tanker trck to refurbish and use for his business. The defendant 16 did not have the tank of the trck adequately cleaned before he asked the plaintiff to 17 climb on the trck while the defendant cut a hole in the tank. When the defendant waste oil that 18 lit a welding torch to make the cut, the tank exploded because of welding on a waste oil tanker 19 remained inside. The court held that "the activity of 20 with a blowtorch was ultrahazardous, . . (because) waste oil contains gasoline and 2 i solvents and is therefore highly combustible and potentially extremely explosive, . . 22 . The danger of explosion would not be completely eliminated by steam cleaning." 23 Id. at p. 419. The court noted that the "activity in which (defendant) was engaged 24 was incredibly dangerous not only to Norton but to anyone else within a relatively 25 large area." ¡d. at p. 420. 26 Accordingly, the mere welding of any tanker would not be ultrahazardous, risks posed. 27 but the welding of an oil tanker is dangerous due to the high degree of 28 Similarly, burning non hazardous materials may not pose a risk, and cooling hot 02262.001 - 124543 19 risk. Adding a 1 engine blocks with plain water may not pose a high degree of 2 hazardous chemical to the burning and adding a dangerous contaminant to the 3 cooling water, however, turns this activity into an "incredibly dangerous" activity to 4 those in the surrounding area, as with the welding of an oil tanker. 5 The second factor of Section 520 is that the likelihood that harm wil be great. 6 Defendants' releasing toxic chemicals into the air by burning and through a steam 7 cloud posed great harm to its nearby neighbors. The toxins released at the Area 1 8 Bum Pit at SSFL included propellant waste chemicals, JP4, RP 1 fuel (kerosene), 9 trethyl aluminum, trethyl boron, hydrazine, unsymetrcal dimethyl hydrazine 10 (UMH), nitrogen tetroxide (NTO), oils, trchloroethylenes, hydrazine and 11 magnesium chips. Toxins released in the contaminated water used for cooling the 12 engine test stands, at minimum, included kerosene, nitrc acid, sulphuric acid, 13 hydrochloric acid, caustic soda, engine fuel and solvents, and trchloroethylene. 1 (PSUF No, 32,47, 50.) Once again, the harm posed here is rather apparent. 15 Inhalation of toxic and carcinogenic chemicals is generally the most dangerous 16 method of exposure, and these two practices were supplying toxins for neighbors to 17 breathe. The likelihood of har from this conduct was great. 18 The authors of the Restatement address that third factor from section 520 as 19 follows: harm 20 There is probably no activity, (. , ,) from which all risks of 21 could not be eliminated by the taking of all conceivable 22 precautions, and the exercise of the utmost care, particularly as 23 to the place where it is carried on. Thus almost any other 24 activity, no matter how dangerous, in the center of the Antarctic 25 continent, might be expected to involve no possible risk to any 26 one except those who engage in it. It is not necessary, for the 27 factor stated in Clause (c) to apply, that the risk be one that no 28 conceivable precautions or care could eliminate. What is 02262.001 - 124543 20 1 referred to here is the unavoidable risk remaining in the activity, 2 even though the actor has taken all reasonable precautions in 3 advance and has exercised all reasonable care in his operation, so 4 that he is not negligent. 5 See Restatement (Second) § 520, comment h. 6 In this matter, the actual burning of these toxic chemicals and utilizing them 7 in water to cause clouds of contaminants is the activity at issue and is hazardous in 8 and of itself. Unless eliminated altogether, this practice of using contaminated 9 water and improper burning poses a risk in and of itself, The original use of the 10 toxic chemicals is not at issue as the basis for strict liability. Rather, it is this 11 dangerous and improper use implemented by Defendants which is at issue here. harm related to the mere transport and use of 12 By comparison, the health risks of 13 toxic chemicals in an industral setting may be high, but often the controls in place 14 may allow them to be performed in less hazardous manner. (See Hook v. Lockheed 15 Martin Corp. (In re Burbank Envtl. Litg), 42 F. Supp. 2d 976, 1998 U.S. Dist. 16 Lexis 21969 (C.D.Cal. 1998). 17 The doctrne of ultrahazardous activity "focuses not on a product and its 18 defects but upon an activity intentionally undertaken by the Defendant, which by its 19 nature is very dangerous." Pierce v. Pacifc Gas & Electric Co., supra, 166 but the activity 20 Ca1.App.3d at 85. "The doctrne scrutinizes not the accident itself 21 which led up to the accident." ¡d. Here, the activity which led to the toxic releases 22 (the burning of hazardous wastes and the cooling with contaminated water) 23 constitutes the ultrahazardous activity at issue, not the mere use of the chemicals 24 originally. 25 Applying these criteria, courts have found that the use and disposal of 26 hazardous industrial wastes can be abnormally dangerous. For example, in Potter v. 27 Firestone Tire & Rubber Co., 6 CalAth 965, 977 (1993), the trial court found that 28 Firestone engaged in ultrahazardous or abnormally dangerous activities by dumping 02262.001 - i 24543 21 1 toxic substances in a landfill not suited for such chemicals and therefore was strctly 2 liable for the consequences of its activity. The California Supreme Court did not 3 reach defendant's contention that the tral court erred in finding that its disposal 4 activities were ultrahazardous. See also, Prospect Industries Corp. v. Singer Co., 5 569 A,2d 908 (N.J.. 1989) '(former owners of a manufacturing plant contaminated 6 propert with PCBs); Updike v. Browning-Ferris, Inc., 808 F.Supp. 538, 543 hazardous waste in (open) pits is 7 (W,D.La. 1992) (Louisiana law) ("the storage of 8 an ultrahazardous activity"). 9 In Ahrens v. Superior Court, 197 CaI.App.3d 1134 (1988), plaintiffs sued 10 PG&E and others for injuries allegedly caused by exposure to PCBs and other toxic 11 substances following a fire in a downtown San Francisco office building. At issue electrical transformers which contained PCBs in areas of 12 was PG&E's placement of 13 dense population. Without making a finding, the appellate the court remanded the 1 case to the tral court to determine whether PG&E' s use of these transformers 15 constituted an ultrahazardous or abnormally dangerous activity, using the criteria in Torts. fd. at 1149. See also, Daigle v. the Restatement (Second) of 16 Section 520 of 17 Shell Oil Co., 972 F.2d 1527 (10th cir. 1992) (remanding case to the district court to 18 determine if, under Colorado law and applying § 520 of the Restatement (Second) of 19 Torts, cleaning up a hazardous waste site was an ultrahazardous or abnormally 20 dangerous activity to which strict liability principles apply), 21 Consequently, the manner in which the contaminated water was used and the 22 hazardous waste was burned is the conduct at issue. The elimination of the practice 23 altogether would have alleviated the risk, but that is not the criterion at issue. 24 Rather, as long as Defendants performed this conduct is posed a threat to their 25 neighbors, 26 As to the fourth factor of Section 520, as discussed above, burning dangerous 27 chemicals and cooling hot engine test stands with contaminated water was not a 28 matter of common usage at the time. The burning was even prohibited by law and 02262.001 - 124543 22 1 the cooling caused clouds of contaminated steam to form. (PSUF No, 41, 51, 53.) 2 Even the mere possession of contaminated water and hazardous waste was not a 3 matter of common usage in the 1950's through the early 1970's, so certainly their 4 dangerous use was not common. This fourth factor also supports the imposition of 5 strct liability against Defendants for this conduct. 6 Defendants' dangerous burning of hazardous wastes and cooling with 7 contaminated water were activities conducted in an inappropriate location, thereby 8 satisfying the fifth factor of Section 520. Explaining the factor of inappropriate of 9 activity to location, one court explains, "(b )lasting in populated surroundings, in the 10 vicinity of dwelling places or places of business is considered an ultrahazardous 11 activity for the miscarrage of which the actor is held strctly liable in damages 12 regardless of the degree of care with which the blasting is performed," while in 13 isolated areas it may not be. Alonso v. Hills, 95 CaL. App. 2d 778, 783 (1950), 14 citing McGrath v. Basich Bros. Constr. Co., 7 CaL.App.2d 573 (1935); McKenna v. 15 Pacifc E. R. Co., 104 CaL.App. 538 (1930). 16 Similarly, Defendants' burning of toxins and cooling with contaminated 17 water may have been appropriate in a completely remote area (although many would 18 argue the environment also suffers), but these activities were not proper near 19 Plaintiffs' residences. The SSFL employees performng these functions could even 20 see the clouds emitted drifting toward the residences populated nearby. (PSUF No. 21 39,40, 54, 56,) 22 As to the fifth criterium of Section 520, the value to the community of the 23 dangerous activities was also outweighed by its dangerous attributes. The choice to 24 bum hazardous waste provided no benefit to the community - the toxins went into 25 the air versus into a proper waste facility. Admittedly this system used to cool the 26 engine test stands had some value by recycling water rather than taking from the 27 freshwater supply, but that was greatly outweighed by the dangers posed by 28 1/1 02262.00 I - i 24543 23 1 releasing hazardous chemicals into the air in the process. Further, these specific 2 dangerous activities were not necessary to the overall operation of the SSFL. 3 Finding that the firing of solid fuel rocket motor constituted an ultrahazardous 4 activity~ in Smith v. Lockheed Propulsion Co., 247 Ca1.App.2d 774, 785 (1967), one . 5 court explained: 6 In our opinion, defendant's activity must be classed as 7 ultrahazardous. The solid fuel rocket motor was the largest ever 8 tested to that date. Test firing such a device is not a matter of 9 common occurrence. The fact that defendant found it necessary 10 to acquire 9,100 acres for its purposes, and at one time told 11 plaintiffs it needed their propert in order to conduct the test, is 12 evidence of its recognition of the risk inherent in the undertaking 13 despite the exercise of due care. In these circumstances, public 14 policy calls for strct liability. (Luthringer v. Moore, supra, 31 15 Ca1.2d 489, 500; Rest., Torts, § 520). There is no basis, either in 16 reason or justice, for requiring the innocent neighboring 17 landowner to bear the loss, Defendant, who is engaged in the 18 enterprise for profit, is in a position best able to administer the 19 loss so that it will ultimately be borne by the public. As 20 Professor Prosser summarizes the rationale for the imposition of 21 strict liability: 'The problem is dealt with as one of allocating a 22 more or less inevitable loss to be charged against a complex and 23 dangerous civilization, and liability is placed upon the party best 24 able to shoulder it.' (Prosser, Law of Torts, (2d ed. 1955) page 25 318). 26 Similarly, the contaminated water used to cool the rocket test stands and burning of 27 toxic materials exposed SSFL's innocent neighbors to toxins with no benefit to the 28 community and should be allocated to Defendants. 02262.001 - 124543 24 ,. 1 2 3 4 ~ the criteria of Under California law, while the Court should consider all of Section 520 of the Restatement, they need not be present in a particular case for an ultrahazardous condition to exist, and Defendants' operations at SSFL satisfy the analysis prescribed in Section 520. If Defendants argue that the releases occurred 5 despite their best efforts to prevent them and that no alternative measures were 6 available to reduce or eliminate the risk, then this argument further supports that the 7 criteria necessary to find an ultrahazardous condition exist. No one can contend, 8 meanwhile, that Defendants' practices were accepted as a matter of common usage, 9 as Defendants made sure they were only performed at night. The scope of the 10 conduct and the exposure of danger was such that their location was not safe for this 11 nearby residents to toxic chemicals was not a justified price for Defendants to 12 conduct their business, The just result is that the injured should not have to prove 13 Defendants' negligence, when Defendants chose to undertake the dangerous 14 activities which resulted in their injuries, as strct liability applies. 15 16 v. CONCLUSION 17 For the reasons given above, Plaintiffs respectfully request that the Court 18 award parial summary judgment to Plaintiffs, holding that Defendants are strictly 19 liable for injuries to plaintiffs flowing from their ultrahazardous activity in 20 operating experimental nuclear reactors, burning toxic materials at the Area 1 Burn 21 Pit, and cooling rocket engines with water contaminated with deadly toxins. 22 23 Dated: May 27, 2005 CAPPELLO & NOËL LLP 24 B 25 26 27 28 02262,001 - 124543 25 .' ,. Lawrence O'Connor v. Boein; North American.. Inc. U.S.D.C. Case No. CV 9 -1554 DT (RCx) 1 2 3 PROOF OF SERVICE 4 STATE OF CALIFORNIA, COUNTY OF SANTA BARBAR 5 I am employed in the County of Santa Barbara, State of California. I am over the age of 18 and not a part to the within action; my business address is: 831 State 6 Street, Santa Barbara, California 93101. 7 On May 27k2005, I served the foregoing document described as PLAINTIFFS' iviEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZARDOUS ACTIVITIES on the interested parties in this action 8 9 10 o by placing 0 addressed the original IK a tre copy thereof enclosed in a sealed envelope as follows: 11 William W. Schofield Esq. P AULl HASTINGS.¡ JANOFSKY & WALKER LLP 12 55 2na Street, 24th .r loor 13 1 15 16 17 o and o 18 21 22 23 24 25 by California Overnight. I am readily familiar with the firm's practice of collection and processing correspnndence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with tnis firm's ordinary business practices. by placing 0 the original IK a tre copy thereof enclosed in a sealed envelope addressed as follows: Tina B. Nieves, Esq._ GANCEDO & NIEVES LLP 144 W. Colorado Boulevard 19 20 San Francisco, California 94105-3441 o o Pasadena, California 91105 by U. S. MaiL. I am readily familiar with the firm's practice of collection and processing correspondence on the same day with postage thereon fully business. prepaid at Santa Barbara, California, in the ordinary course of (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed at Santa Barbara, California, on 26 T:me Y Ortiz 27 TYPE OR PRINT NAME 28 02262.001 - 124543 1 A. Baa Çatpello, CSB 037835 Leila J.~oë ~ CSB 114307 2 Troy A. Thieleman, CSB 174276 CAPPELLO & NOËL LLP 3 831 State Street Santa BarbaraÒCa1ifornia 93101 4 Telephone: (8 5) 564-2444 Facsimile: (805) 965-5950 5 E-mail: abc~cappellonoeI.com 6 Tina B. Nieves, CSB 134384 Hector G. Ganced9? CSB 132139 7 James M. Kenn~" cSB 209961 GANCEDO & l'\IEVES LLP 8 144 West Colorado Boulevard Pasadena, California 91105 9 Telephone: (626) 685-9800 Facsimile: (626) 685-9808 10 Attorneys for Plaintiffs 11 12 UNITED STATES DISTRICT COURT 13 CENTRA DISTRICT OF CALIFORNIA WESTERN DIVISION 1 15 16 LAWRNCE O'CONNOR, et aI., Plaintiffs, 17 v. 18 19 20 BOEING NORTH AMERICAN, INC., et aI., Case No. CV 97-1554 DT (RCx) DECLARTION OF MICHAL D. PRIMAK IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZAROUS ACTIVITIES Defendants. 21 D.ate: August 8, 2005 22 23 AND RELATED ACTIONS 2 25 26 27 28 02262.001 - 124520 Time: 10:00 a.m. Place: Courtoom 880 (Roybal Bldg.) Judge: Ron. Dickran Tevrzian 1 DECLARTION OF MICHAEL D. PRIMAK 2 I, MICHAEL D. PRIAK, declare as follows: 3 1. I have personal knowledge òf the matters stated herein. If called as a 4 witness, I could and would testify trthfully and competently thereto under oath. Plaintiffs' Motion for Summary 5 2. I submit this declaration in support of 6 Adjudication of Strct Liability for Ultrahazardous Activities. 7 3. I was hired by Rocketdyne in September 1962, and received 8 orientation training at the main facility located at 6633 Canoga Avenue. I was then 9 assigned to the Santa Susana Field Laboratory (SSFL) to work as a fireman, where I 10 worked all three shifts: days (0800 - 1600), evenings (1600 - 2400), and graveyard 11 (2400 - 0800), until I left in 1970. 12 4. When I worked the graveyard shift at SSFL, I was often required to 13 burn off a varety of hazardous waste chemical materials that had accumulated at 1 the' burn pit' area. The burn pit area was located in the Southwest corner of Area 15 1, bordering the SSFL buffer zone. These materials were brought to the burn pit 16 area from other parts of the SSFL site and also brought by flatbed trck from the 17 manufacturing plant at Canoga Avenue. 18 5. The materials I burned in the pits included oils, trchloroethylenes, 19 hydrazine and magnesium chips. I also burned a large amount of other materials 20 that were contained in unmarked and unlabeled barrels. In all my time at SSFL, I 21 never once saw an inventory of the materials that I was responsible for burning. 22 6. I was told not to conduct any burnings if it was raining or if the wind 23 would blow the smoke and odors back over SSFL. I usually started burning the 2 hazardous waste materials around 0100 hours and always concluded before 25 daylight. The materials I burned produced dense heavy smoke of various colors 26 that were difficult to identify because of the darkness. I witnessed the large plumes 27 of smoke rise up into the air and be caried off with the wind. Many times I saw 28 the smoke cloud drift towards populated areas. 02262.001 - 124520 1 1" 1 7. I was aware of a Rocketdyne offsite disposal plant in Sparks, Nevada, 2 but I do not remember seeing any hazardous materials being sent there. If I could 3 not burn all of the material at the burn area pits before daylight, I would leave it 4 there until the next bur. 5 8. Whle I worked at SSFL I witnessed many rocket engine test firings. 6 The test stands were located on elevated terrain and were named Alpha, Bravo, 7 Coco, and Delta. I saw multi-engine configuations tested at the largest stand 8 which was Coco. At a lower elevation from the test stands I observed ponds into 9 which the ruoff excess rocket fuel and coolants flowed. Water from these i 0 collection ponds was used to fill the tanks, and the water in those tanks, located 11 near the test stands, was used to cool the rockets every time they were test fired. 1 When the water was poured into the deflectors at the base of the test stands, I 13 observed a large cloud form. I witnessed the cloud rise into the air and be cared 1 off depending on the strength and direction of the wind. 15 9. I was never instrcted, .or given any specific training by Rocketdyne to 16 show me how to dispose of hazardous materials at SSFL. In the first week of my 17 training program at SSFL my shift lieutenant told me that as a fireman I was there 18 to protect the industral competitiveness of the company. When Atomics 19 International and Rocketdyne consolidated their fire and security departents, I 20 was cross trained in the use of weapons and was given assigned patrols. After my 21 III 22 I I I 23 III 2 III 25 III 26 III 27 III 28 III 02262.001 - 124520 2 i initial orientation I was only given training on rirst aid and securty issues. I was 2 told that securty was the top prionty of 3 materal safety was being neglected. 4 5 6 my job and I felt that fire and hazdous I declare UIder penalty of peijury, under the laws of the United States of America, that the foregoing is tre and correct. Executed this t-I day of May 2005; at J:11v¿' , California; 7 8 9 By7dl,~~~ ae . nma 10 i i 12 13 i is 16 17 18 i 20 2J 22 23 2 25 2 27 28 3 02262001 . 124520 1 2 3 PROOF OF SERVICE 4 STATE OF CALIFORNA, COUNTY OF SANTA BARAR 5 I am employed in the County of Santa Barbara, State of California. I am over the age of 18 and not a part to the within action; my business address is: 831 State 6 Street, Santa Barbara, California 93101. . 7 On MêY 2'Z". 2005,; 1 served the foreg--ing document described as DECLARTI01~ OF iviiCHAL D. PRIMAK IN SUPPORT OF 8 PLAINTIFFS' MOTION FOR SUMY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZAROUS ACTIVITIES on the interested 9 paries in this action 10 0 by placing. D the original IK a tre copy thereof enclosed in a sealed envelope addressed as follows: 11 William W. Schofield Esq. 12 PAUL" HASTINGS.,JANOFSKY & WALKERLLP 55 2na Street, 24th 1'loor 13 San Francisco, California 94105-3441 1 15 1 17 18 o and o 19 20 21 22 23 2 25 26 27 28 o o by California Overnight. I am readily familiar with the firm's practice of collection and processing correspnndence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with tnis firm's ordinar business practices. by placing D the original IK a tre copy thereof enclosed in a sealed envelope addressed as follows: Tina B. Nieves, Esq. GANCEDO & NIEVES LLP 144 W. Colorado Boulevard Pasadena, California 91105 by U. S. MaiL. I am readily familiar with the firm's practice of collection and processing correspondence on the same day with postage thereon fully business. prepaid at Santa Barbara, California, in the ordinary course of (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed at Santa Barbara, California, on May 27,2005. TYPE'ö'RliJl¡AME ~ .02262.001 - 124520 ,. 1 A. BarNCal.pelIo, CSB 037835 Leila J. oë CSB 114307 2 Troy A. Thelemann, CSB 174276 CAPPELLO & NOËL LLP 3 4 831 State Street Santa BarbaraÒ California 93101 Telephone: ~8 5) 564-2444 Facsimi1e: ( 05) 965-5950 5 E-mail: abc~cappelIonoeI.com 6 Tina B. Nieves, CSB 134384 Hector G. Ganced& CSB 132139 7 8 9 James M. Kennk SB 209961 GANCEDO & IEVES LLP 144 West Colorado Boulevard Pasadena, California 91105 Telephone: ~626) 685-9800 Facsimile: ( 26) 685-9808 1 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT 1 CENTRA DISTRICT OF CALIFORNIA WESTERN DIVISION 1 1 LA WRNCE O'CONNOR, et aI., Case No. CV 97-1554 DT (RCx) Plaintiffs, 17 v. 18 1 BOEING NORTH AMERICAN, INC., et aI., Defendants. 2 AND RELATED ACTIONS 2 2 27 28 02262.001 - 124519 DECLARTION OF DONALD R. CARR IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMRY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZARDOUS ACTIVITIES Date: Auôust 8, 2005 Time: 10: 0 a.m. Place: Courtoom 880 --Roybal Bldgi Judge: on. Dickran evrzian DECLARTION OF DONALD R. CARR 1 2 I, DONALD R. CAR, declare as follows: 3 1. I have personal knowledge of the matters stated herein. If called as a 4 5 6 7 witness, I could and would testify trthfully and competently thereto under oath. Plaintiffs' Motion for Summar 2. I submit this declaration in support of Adjudication of Strct Liability for Ultrahazardous Activities. 3. I was employed as a fireman at the Santa Susana Field Laboratory 8 (SSFL), in Ventura County, California, from 1957 until 1967, and again rrom 1968 9 to 1979. 1 4. One of my duties as a fireman involved burning propellant waste and chemicals including JP4, RP 1 fuel (kerosene), trethyl aluminum, trethyl boron, 1 hydrazine, unsymetrcal dimethyl hydrazine (UMH) and nitrogen tetroxide 1 (NTO), in what we called a 'burn pit' at SSFL. The 'burn pit' was located in the Southwest corner of Area 1, bordering the SSFL buffer zone. 5. I was not aware of any special disposal teams identified among the 1 fireman. Waste buring was included among the duties I was expected to perform 1 similar to fire prevention, fire suppression and responding to emergency calls. There were three different shifts at SSFL that I worked on as a fireman, but all the 1 2 burnings I conducted were only ever scheduled for the third shift which was midnight to eight in the morning. When I reported for my shift I was informed whether I was responsible for buring waste on that particular night. 2 6. Management at SSFL made it clear to me that security was the highest priority at SSFL and I received specialized training in that area. I was cross-trained 2 in the use of weapons such as rifles, shotguns, and pistols. I was also given additional training on first aid techniques, but I never received any special training 2 on how to properly handle and dispose of chemicals. While conducting the 27 burnings at SSFL I was not required to wear any additional or specialized protective 28 clothing other than my fire suit. 02262.001 - 124519 1 1 7. Most of the time the containers containing the material to be bured 2 were clearly labeled as to the contents, but sometimes the material was already 3 dumped in the pit and I could not identify it. The NTO presented myself and the 4 other firemen with an additional problem because it was pressurized and contained to five feet tall, . 5 in a 'K' bottle, which is a metal cylinder about four and a half 6 similar to the oxygen tans used in hospitals. We would place the K bottles in 7 holes we dug in the hillside and then rrom a distance shoot at them with a high 8 powered rifle to punctue the containers. The vaporized NTO would then rise up 9 . into the air formng a yellowish-orange cloud that would drft away depending on 1 the direction the wind was blowing. 8. The other chemicals and propellants that I bured in the pit produced 1 columns of smoke that resembled a rainbow of colors. I witnessed this multicolored cloud rise above the bur area and then move away corresponding to 1 the wind flow. Depending on the direction the wind was blowing I saw these clouds drft towards populated areas ofSimi Valley and the San Fernando Valley. 1 1 9. I was also present at SSFL durng many rocket engine test firings, which I witnessed. Excess coolant, fuel, emissions and chemicals used to flush the rocket engines were allowed to flow downhill into collection ponds, along with 1 water. Water from these collection ponds was used to fill the large tanks located near the rocket test stands. I saw the water rrom these large tanks being applied to the rocket engine tests stands to cool them during rocket engine testing. Excess water rrom this cooling was also allowed to flow downhill into the collection ponds with the other chemicals, to be re-used in this cooling process. This cooling 2 process of the rocket engine test stands produced a huge cloud. I watched as this 25 cloud rose skyards and was carred off by the wind currents. 26 10. A few times I was present when the cloud rrom the rocket engine test 27 firing did not move away but instead rained down on top of the SSFL. On those 28 occasions, I experienced burning sensations on my ars and neck requiring medical 02262.001 - 124519 2 '. 1 treatment. In addition, I observed that my uniform was burt from the parculates 2 fallng frm the sky, and I observed that the vehicles in the parkig lots at SSFL 3 wer covered with fims of dust. 4 5 I declare under penty of perjury, under the laws of the United States of America, that the foregoing is tre and correct. 6 7 Executed ths ~ 6 day of 8 May 2005, at &~ifiJlI r , Ohio. By:0WtA ~ 9 Donald R. Car i 3 0262.00I.124SØ 1 2 3 PROOF OF SERVICE 4 STATE OF CALIFORNIA, COUNTY OF SANTA BARAR 5 6 7 I am employed in the County of Santa Barbara, State of California. I am over the age of 18 and not ajJart to the within action; my business address is: 83 I State Street, Santa Barbara, California 93101. On M~ 21". 2005-- I served the foregQ.ill 90cument described as PLAINTIFFS' UL TRA HAZAROUS ACTIVITIES on the interested parties in this action DECLARTI01~ OF uONALD R. CAR 8 9 IN SUPPORT OF MOTION FOR SUMY ADJUDICATION OF STRICT LIABILITY FOR o by placing D the original IK a tre copy thereof enclosed in a sealed envelope addressed as follows: William W. Schofield Esq. PAUL" HASTINGS;,JANOFSKY & WALKERLLP 55 2na Street, 24th t'loor ' San Francisco, California 94105-3441 1 1 1 o and o by California Overnight. I am readily familiar with the firm's practice of collection and processing corresP9ndence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with tnis firm's ordinary business practices. by placing D the original IK a tre copy thereof enclosed in a sealed envelope addressed as follows: Tina B. Nieves".§sg._ GANCEDO & 1'41EVES LLP 1 o o 144 W. Colorado Boulevard Pasadena, California 91105 by U. S. MaiL. I am readily familiar with the firm's practice of collection and processing correspondence on the same day with postage thereon fully prepaid at Santa Barbara, California, in the ordinary course of business. (FEDERAL) I declare that I am employed in the office of oar of this court at whose direction the service was made. a member of 25 26 27 28 Executed at Santa Barbara, California, on May 27,2005. TYE'Ö'R,in':NAME ~ 02262.001 - 124519 the .. , .I 1 A. B~Calpeiio, CSB 037835 Leila J. Oe CSB 114307 2 Troy A. Thielemann, CSB 174276 CAPPELLO & NOEL LLP 3 4 831 State Street Santa BarbaraÒ California 93101 Telephone: h8 5) 564-2444 Facsimile: ( 05) 965-5950 5 E-mail: abc~cappeiionoeI.com 6 Tina B. Nieves, CSB 134384 Hector G. Ganced& CSB 132139 7 8 9 James M. Kenn~ SB 209961 GANCEDO & EVES LLP 144 West Colorado Boulevard Pasadena, California 91105 Telephone: ~626) 685-9800 Facsimile: ( 26) 685-9808 1 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT 1 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 1 15 16 LAWRNCE O'CONNOR, et aI., 1 Plaintiffs, v. 1 BOEING NORTH AMERlCAN, INC., et aI., Case No. CV 97-1554 DT (RCx) DECLARTION OF WILLIAM R. MUELLER IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZARDOUS ACTIVITIES Defendants. D.ate: August 8, 2005 AND RELATED ACTIONS Time: 10:00 a.m. Place: Courtoom 880 (Roybal Bldg.) Judge: Hon. Dickran Tevrizian 2 2 27 28 02262.001 - 124521 DECLARATION OF WILLIAM R. MUELLER 1 2 I, WILLIA R. MUELLER, declare as follows: 3 1. I have personallrowledge of the matters stated herein. If called as a 4 witness, I could and would testify trthfully and competently thereto under oath. 6 Plaintiffs' Motion for Sumary 2. I submit this declaration in support of 5 Adjudication of Strct Liability for Ultrahazardous Activities. 3. I was hired by Rocketdyne in 1958 and worked for a few months at the 7 8 Canoga Park facility on the corner of Canoga and Vanowen, before transferrng to 9 the facility lrown as the Santa Susana Field Laboratory (SSFL) where I remained 1 until 1967. At SSFL, I worked as a fireman and was primarly assigned to the 1 graveyard shift (2400 - 0800 hours) and swing shift (1600 - 2400 hours). 4. While working the graveyard shift, one of my responsibilities was to bur the excess rocket fuel (JP4), and other waste, that had accumulated on the 1 surface of the various catch ponds located at SSFL. I understood that the rocket fuel and other waste in the catch ponds resulted from the rocket engine test firings 1 conducted by Rocketdyne. After I burned off the excess fuel from the surface of the 1 pond, the water was recycled back into the cooler tanks to be used again to cool the rocket engines when they were test fired the next time. I was not given any 1 specialized training in how to handle this assignment, other than I was told it could only be done at night. 5. On the nights I was assigned this duty, myself and one other fireman would check the five or six catch ponds at SSFL to see how much rocket fuel had accumulated on the surface. I could see the filmy stains of the rocket fuel on the surface of the water. The rocket fuel would not burn on its own, so I would pour gasoline on the rocket fuel stain to get it started and then stand back and wait for it to bum out. I watched as the fire produced heavy black smoke which rose into the air and was carried off 28 by the wind currents. Because all the bumings were conducted at night I could not always see in what direction the smoke was carried 02262.001 - 124521 1 ,'" i by the wind. On the few occasions when the cloud of smoke did not move away 2 ftom overhead I felt parculates rain back down on me. 3 6. Another part of my duty as a fireman at SSFL consisted of standing by 4 when the rocket engines were being prepared for test firings. The water that was 5 used for the cooling process came úom tanks located near the test stands. The 6 excess coolant. fuel and cheJJcals used to flush the engines flowed along with the 7 water into catch ponds located at a lower elevation. I saw the water ITom the large 8 tans located near the test stands poured into the deflector buckets to cool them 9 durng the engine testing process. This cooling process produced a huge cloud which rose up into the air and was eamed away with the wind. 7. Durng the nine years that I worked at SSFL, J mcan several explosions and accidents resulting in fatalities that occured on the site. One incident that I canot forget occured after an explosion kiJJed a number of employees. I was responsibk along with my supervisor Jim Jones to conduct a head count of casualties. Human remains were spread over a large area where the expJosion took place and myself and tbe other fireman had to col1ect the body pars for removaL. I decJare under penal ty of peijury, under the laws of the United States of America, tbat the foregoing is tre and correct. Executed this ,; 3- day of May 2005, at /?c;.5 c: 1'1 I Ie, Californa. By:c2ii!lL~Y" a, JJ1v1f6- lWi1iam R. Mueller 25 26 2 2 2 02262.001 - l24ni 1 2 3 PROOF OF SERVICE 4 STATE OF CALIFORNA, COUNTY OF SANTA BARARA I am employed in the County of Santa Barbara, State of California. I am over 5 the age of 18 and not a j)ar to the within action; my business address is: 831 State 6 7 8 9 1 Street, Santa Barbara, California 93101. On M~ 2'Zt2005",r served the foregQQng document described as DECLARTIOl~ OF wILLIAM R. MUELLER IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMY ADJUDICATION OF STRICT LIABILITY FOR ULTRA HAZAROUS ACTIVITIES on the interested paries in this action o by placing Daddressed the original IR a tre copy thereof enclosed in a sealed envelope as follows: William W. Schofield Esq. PAULl HASTINGS¡,lANOFSKY & WALKER LLP 1 1 55 2na Street, 24th .r loor o San Francisco, California 94105-3441 by California Overnight. I am readily familiar with the firm's practice of collection and processing COrreSI!9ndence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with tnis firm's ordinary business practices. 1 1 and o by placing D the original IR a tre copy thereof enclosed in a sealed envelope addressed as follows: 1 Tina B. Nieves, Esq. 2 GANCEDO & NIEVES LLP 144 W. Colorado Boulevard Pasadena, California 91105 2 2 2 o o by U. S. MaiL I am readily familiar with the firm's practice of collection and processing correspondence on the same day with postage thereon fully business. prepaid at Santa Barbara, California, in the ordinary course of (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed at Santa Barbara, California, on May 27,2005. 27 28 T~ne Y Ortiz TYPE OR PRIT NAME 02262.001 - i 24521