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Aerojet-General Corp. v. Industrial Underwriters Insurance Co.2/28/2002
Engines
Aerojet next contends the trial court erroneously inferred that Aerojet intended to release the pollutant NDMA (nitrosodimethylamine) to the ground during test firings of liquid rocket engines, when Aerojet washed down the test stands after the test firings. NDMA was an intermediate product in the manufacture of the liquid fuel UDMH (unsymmetrical dimethyl hydrazine) used in the test firings. Aerojet says no one, not even Dr. Karl Klager, the Aerojet scientist who obtained a patent covering the manufacture of UDMH from NDMA, knew at the time in question (beginning in the 1950's) that NDMA was present as an impurity in the final product UDMH that fueled Aerojet's liquid rocket engines or that NDMA would be discharged during test firings. We shall conclude Aerojet fails to show grounds for reversal.
In the trial court, Aerojet's position was that it did not know how NDMA came to contaminate the groundwater under Aerojet's Azusa site, though Aerojet acknowledged NDMA was an intermediate product in the manufacture of UDMH. Aerojet theorized as a possible explanation, that despite Dr. Klager's belief that no NDMA would be present in the final product of UDMH, that small quantities of NDMA may remain as an impurity in UDMH. Aerojet theorized another explanation--that uncombusted UDMH could have reacted with acids in the effluent stream to form NDMA after washdown operations. Aerojet also blamed the County, because the County dictated that a rain gauge be installed on Aerojet's on-site waste treatment system so that, after more than .15 inch of rainfall, a valve would be triggered that would discharge effluent into an earthen pond on Aerojet's property rather than into the county's sewer system.
The trial court said Aerojet's case suffered from "several evidentiary and factual flaws." First, no evidence was offered to support the assertion that minute amounts of NDMA were present as impurities in UDMH after manufacturing. Dr. Klager's deposition stated only that it was "very improbable" that NDMA remained in the final UDMA. Second, the trial court said there was no evidence UDMH was accidentally spilled onto the ground; rather, the evidence indicated UDMH was spilled on concrete floors of the test areas and was thereafter washed away in routine washdown operations. With respect to Aerojet's argument it did not know NDMA would be formed in the effluent stream after washdown, the trial court said Aerojet had submitted no evidence indicating such an effect may have occurred, and Aerojet had conceded at the hearing that its evidence did not address the issue. The court then said that, even if there were some evidence to support this theory, there would still be no triable issue, because the UDMH, from which the NDMA supposedly derived, was intentionally washed away from the test sites in order to dispose of it.
On appeal, Aerojet contends that, because it did not know NDMA was present in the UDMH, the trial court erred in inferring that Aerojet intended to release NDMA to the environment. However, Aerojet fails to address the trial court's observation that no evidence was offered to support Aerojet's theory that minute amounts of NDMA were present as impurities in the final product UDMH.
Moreover, Aerojet fails to show how any erroneous inference could have caused prejudice warranting reversal of the judgment, in light of Aerojet's waiver with respect to the matter of causation.
In its reply brief, Aerojet cites evidence concerning NDMA which was presented in connection with Aerojet's motion for reconsideration. As we have explained, we do not consider evidence which was not before the trial court when it granted summary adjudication, and Aeroj
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