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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
inferred from the violence of the explosions and the resulting damage to the buildings [fn. omitted], there is no evidence that the release of such dust created any appreciable amount of environmental damage over and above that caused by Aerojet's routine burning of scrap solid propellant. . . ." As we have seen, Aerojet expressly waived the issue of concurrent causation in the trial court.
Thus, even assuming the trial court made an erroneous inference in its first statement, Aerojet fails to show prejudice warranting reversal, in light of the fact the court gave an alternate reason for its decision, and Aerojet fails to show grounds for reversal with respect to the alternate reason.
B. Test Firings of JATO Rocket Motors
Aerojet next contends the trial court erroneously inferred that Aerojet intended to release perchlorate to the ground during test firings of JATO rocket motors.
Aerojet says that in order to control smoke and noise during test firings of solid propellant JATOs, it channeled the rocket motor's exhaust through a water spray. The water ran off to the ground (prior to 1952) or to Aerojet's on-site industrial waste system (after 1952). At the time, Aerojet was unaware that any perchlorate would be dissolved in the water, because its personnel believed that all of the perchlorate would be consumed during combustion. It is now known that miniscule amounts of perchlorate were discharged during the test firings. Aerojet contends those discharges constituted sudden and accidental releases, but the trial court rejected them based on an erroneous inference that Aerojet intended to release perchlorate to the ground since it intended to test fire the rockets.
However, what the trial court's order said was: "First, there is no evidence that shows with any certainty that perchlorate residues actually were discharged onto any surface as the result of test firings. The only evidence offered on this point, the Declaration of Stanley E. Spas, states only that `. . . uncombusted perchlorate may be spewed onto the ground surface at the firing location.' [Fn. providing cite to declaration omitted.] The declaration is speculative on its face and insufficient to establish that any perch orate residue actually was `spewed' during firing. But even if the declaration can be taken as showing that some perchlorate residue was in fact discharged, Aerojet's own evidence demonstrates that such residue was put into the facility's sewer system as the result of intentional washdown operations. [Fn. providing cite to evidence omitted.] Finally, as before, any discharge that occurred through the operation of the rain gauge was not sudden and accidental. Accordingly, Aerojet has not raised a triable issue of material fact regarding sudden and accidental discharges of pollutants during test firings of solid fuel rockets."
To the extent that Aerojet suggests the trial court erroneously inferred Aerojet knew perchlorate was being released, Aerojet fails to show prejudice, because the trial court gave alternate grounds for its decision, i.e., the speculative nature of Aerojet's evidence, and Aerojet has failed to demonstrate reversible error with respect to the alternate grounds. Moreover, although opposing evidence is liberally construed, evidence constituting mere speculation will not defeat summary judgment. Evidence regarding purported sudden and accidental releases of pollution "which do no more than offer conclusory assertions or speculation regarding any causal link between the purported releases and claimed damages, insufficient to defeat summary adjudication." (Travelers, supra, 63 Cal.App.4th at p. 1462.)
C. Test Firings of Liquid Rocket
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