Philadelphia, City of v. Stepan Chem. Co.
Citation: 12 ELR 20915
No. No. 81-0851, 544 F. Supp. 1135/17 ERC 1977/(E.D. Pa., 08/04/1982)
The district court rules that the City of Philadelphia can maintain its claims under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and under state common law theories for recovery of cleanup costs and damages from generators whose industrial wastes were illegally disposed of at the city's landfill, but dismisses the city's claims under the Federal Water Pollution Control Act (FWPCA), federal common law nuisance, and state and local statutes.
Ruling on defendants' motion for judgment on the pleadings, the court rejects defendants' contention that plaintiff, as owner and operator of the Philadelphia landfill, cannot seek response costs under § 107(a) of CERCLA since the city is possibly subject to liability under the Act. The court finds no indication in the language or legislative history or CERCLA of an intent to preclude plaintiff, who did not voluntarily permit hazardous substances to be placed on its property and sustained damages as a result of such illegal disposal, from recovering its response costs from waste generators who are expressly liable for such costs under the Act. However, the court dismisses plaintiff's claim for damages under § 505(a) of the FWPCA, ruling that the section does not authorize a private right of action for the recovery of damages. The court also dismisses plaintiff's federal common law nuisance claim. Concluding that the complaint is premised upon the illegal disposal of hazardous waste, the court rules that any federal common law of nuisance for hazardous waste disposal has been preempted by the Resource Conservation and Recovery Act and CERCLA.
In addition, the court dismisses plaintiff's claims under § 401(b) of the Pennsylvania Solid Waste Management Act, § 601 of the Pennsylvania Clean Streams Law, and the Philadelphia Code. However, the court denies defendants' motion for judgment on the pleadings as to plaintiff's claims under state common law trespass, nuisance, strict liability, and negligence, ruling that such claims raise issues of fact that cannot be disposed of on a summary motion.
[The pleadings in this case are summarized at ELR PEND. LIT. 65685, 65705, and 65744 — Ed.]
Counsel for Plaintiff
Alan T. Davis, City Solicitor; Frank M. Thomas Jr., Albert J. Slap, Kenneth S. Cooper
1500 Municipal Services Bldg., Philadelphia PA 19107
Counsel for Defendants
Patrick T. Ryan, Cynthia J. Giles, John P. Kirwin III
Drinker, Biddle & Reath
1100 Philadelphia Nat'l Bank Bldg., Philadelphia PA 19107