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Homart Dev. Co. v. Bethlehem Steel Corp.

Citation: 14 ELR 20718
No. No. C84-2579 WWS, 22 ERC 1357/(N.D. Cal., 07/12/1984)

The court rules that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes private parties to recover response costs from responsible parties without Environmental Protection Agency (EPA) approval of the response action. Ruling from the bench at the close of oral argument, the court first notes that CERCLA is a remedial statute that must be construed liberally. The court rules that the § 107 cost recovery process is unconnected to the claims procedure established in §§ 111 and 112. It next rules that the § 107 requirement that private response actions be "consistent" with the national contingency plan (NCP) does not mandate prior EPA approval of the response action. Congress expressly provided for such approval in other sections of the Act, and the fact that it omitted such language from § 107 is significant. The court rejects defendant's argument that CERCLA gives EPA primary jurisdiction over response actions as unsupported by the language of the statute and the procedures it sets up. Nor is prior EPA approval required by the policies underlying CERCLA. The court notes that the question of whether the costs incurred in this case were consistent with the NCP is a factual one to be resolved at trial. Finally, the court dismisses a claim based on California Civil Code § 2821, since the section does not provide a private right of action, and dismisses another claim under nuisance law, since there is no ongoing use of defendant's land.

The full text of the oral argument and ruling is available from ELR (39 pp. $5.50, ELR Order No. C-1328).

Counsel for Plaintiff
Terry J. Houlihan, Patricia L. Shanks, John D. Edgcomb
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000

Counsel for Defendant
Gary H. Anderson, Nicole Goldberg
Pillsbury, Madison & Sutro
P.O. Box 7880, San Francisco CA 94120
(415) 983-1000

Schwarzer, J. - from the bench