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Ascon Properties, Inc. v. Mobil Oil Co.

Citation: 19 ELR 20374
No. No. 87-5807, 866 F.2d 1149/29 ERC 1001/(9th Cir., 01/31/1989)

The court rules that a plaintiff suing for response costs under § 107 of the Comprehensive Environmental Response, Compensation, and Recovery Act (CERCLA) need not specifically allege the manner in which a release has occurred nor detail the types of response costs incurred, and that the 90-day notice requirement for claims under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) is jurisdictional. The court first holds that plaintiff adequately alleged all elements of a prima facie case under CERCLA § 107. Plaintiff's complaint alleged that the property is a facility, that a release or threatened release of hazardous substances occurred, that plaintiff had incurred response costs, that the generator defendants disposed of hazardous substances on the property, and that the transporter defendants selected the property for disposal. The court rules that a specific allegation concerning the manner in which the release or threatened release occurred is not an element of a prima facie case under CERCLA. Since response costs under CERCLA can include the costs of investigation or testing for the presence of hazardous wastes, it is conceivable that a claimant could recover for these costs under CERCLA § 107 before the potential means of release have been identified. Nothing indicates that Congress intended such an allegation to be part of the prima facie case. Moreover, an allegation that there is a release or threatened release from a particular facility satisfies the requirements of notice pleading. The court also rules that an allegation specifying the exact types of response costs incurred is not part of a § 107 prima facie case. However, the court rules that a plaintiff is required to allege at least one type of response cost cognizable under CERCLA. Plaintiff's allegations that it has incurred response costs as well as costs associated with the development of a remedial plan satisfy CERCLA's pleading requirements. The court also holds that plaintiff's complaint contains sufficient factual allegations to fulfill the basic requirements of notice pleading. Plaintiff specified the location, size, and history of the property and the kinds of toxic wastes located there, alleged that it had incurred cleanup costs and had prepared a remedial action plan, and specifically alleged the various dates on which the 11 generator and 4 transporter defendants deposited hazardous waste on the property. In addition, the court holds that plaintiff adequately complied with the district court's directives in an order dismissing plaintiff's complaint without prejudice.

The court next holds that the district court properly dismissed plaintiff's claim under RCRA § 7002(a)(1)(A), since the alleged dumpings of hazardous materials occurred before RCRA's enactment. The court also rules that the 90-day notice requirement in RCRA § 7002(b)(2)(A) for claims under RCRA § 7002(a)(1)(B) is jurisdictional, and holds that the court therefore lacks jurisdiction over plaintiff's complaint, which failed to allege compliance with the notice requirement and which does not fall within an exception to the requirement. Finally, the court holds that the district court did not abuse its discretion in denying plaintiff's request for leave to amend, since there are indications of bad faith on plaintiff's part, there has already been undue delay in the case, amendment of the complaint would cause undue prejudice to the opposing party, and plaintiff has previously amended its complaint.

Counsel for Plaintiff-Appellant
Raphael Metzger
711 Electric Ave., Seal Beach CA 90740
(213) 493-1070

Counsel for Defendants-Appellees
Ward L. Benshoof
McClintock, Kirwan, Benshoof, Rochefort & Weston
444 S. Flower St., Fifth Fl., Los Angeles CA 90017
(213) 623-2322

Lori Huff Dillman
Sidley & Austin
2049 Century Park East, Los Angeles CA 90067
(213) 553-8100

Before Farris and Wiggins, JJ.