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United States v. Southeastern Pa. Transp. Auth.

Citation: 17 ELR 20001
No. Nos. 86-1094 et al., 24 ERC 1860/(E.D. Pa., 07/02/1986)

The court rules that general allegations of response costs are sufficient to state a claim under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), failure to plead consistency with the National Contingency Plan (NCP) is not relevant to whether a claim exists under CERCLA, the 60-day notice provision in CERCLA § 112 does not apply to § 107 actions, there is no private cause of action for natural resource damages under § 107, and there is no right of action under § 6(e)(2) of the Toxic Substances Control Act. In this case brought by the federal government, a citizens' group, and individuals seeking relief from defendants for alleged polychlorinated biphenyl (PCB) contamination at a railroad yard, the court first holds that plaintiffs have sufficiently alleged that they have incurred response costs under CERCLA. The general costs of removing the contamination alleged by plaintiffs qualify as removal costs under CERCLA § 101(23). The court next holds that plaintiffs' failure to plead consistency with the NCP is not relevant to whether they have stated a claim for response costs under CERCLA, since the NCP applies more to the recovery of damages than to whether there is a valid claim for relief. The court rules that the 60-day notice provision in § 112(a) applies only to actions involving the Superfund under § 111, not to § 107 actions. The court rules that there is no private cause of action for natural resource damages under § 107. Section 107(f) specifically limits recovery of these damages to the federal government and the states. The court also rules that TSCA § 6(e)(2), which gives the Environmental Protection Agency authority to regulate PCBs, does not create a civil action to recover damages.

Having concluded that plaintiffs have stated a valid federal claim under CERCLA, the court grants pendent jurisdiction over plaintiffs' state claims. The court holds that plaintiffs' allegations that defendants fradulently concealed the dangers of their activities at the railroad yard are sufficiently specific to satisfy Federal Rule of Civil Procedure 9(b). The court observes that it is not necessary to plead fraud with a great deal of specificity in a case involving toxic substances. The court defers judgment on whether plaintiffs can recover punitive damages against a state transportation authority, since Pennsylvania law on the issue is unresolved. The court holds that plaintiffs have failed to state a claim for assault and battery, since plaintiffs have not alleged any facts that would show that defendants intended to cause an unpermitted contact or fear of such contact. Defendants intentional use of PCBs does not constitute an intent to injure by force. Finally, the court holds that plaintiffs have failed to state a claim for invasion of privacy because they have alleged no facts that would show that defendants intended to invade plaintiff's privacy.

Counsel for Plaintiffs
Steven J. Englemyer, Ass't U.S. Attorney
3310 U.S. Courthouse, 601 Market St., Independence Mall West, Philadelphia PA 19106
(215) 597-2556

Bonnie A. Sullivan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2992

Counsel for Defendants
Richard A. Kraemer
Margolis, Edelstein, Scherlis, Sarowitz & Kraemer
4th Floor, 1315 Walnut St., Philadelphia PA 19107
(215) 732-3838

David Richman
Pepper, Hamilton & Scheetz
2001 Fidelity Bldg., 123 S. Broad St., Philadelphia PA 19109
(215) 893-3000