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Philadelphia, City of v. Stepan Chem. Co.

Citation: 19 ELR 21319
No. Nos. 81-0851, 83-5493, 713 F. Supp. 1484/29 ERC 1910/(E.D. Pa., 04/11/1989) Allocation of burden of proof

The court holds that a municipality is not a "state" for purposes of recovering response costs under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107(a)(4)(A). This subparagraph authorizes the federal government and states to recover their response costs, and places on the defendant the burden to show that the response was inconsistent with CERCLA's National Contingency Plan (NCP). Section 107(a)(4)(B), on the other hand, authorizes "any other person" to recover response costs, but places on the plaintiff the burden to show that the response was consistent with the NCP. The court first notes that the CERCLA definition of the term "state" does not include the word "municipality." Other CERCLA sections specifically address municipalities' roles, suggesting that the omission of municipalities from the definition of "state" was not accidental. Moreover, the legislative history provides no guidance on the allocation of burden of proof when a municipality seeks to recover its response costs. In a footnote, the court holds that the legislative history accompanying CERCLA's 1986 amendments, which states that Congress defers to judicial interpretation on this issue, does not provide guidance as to congressional intent. Finally, the court holds that the City's receipt of federal Environmental Protection Agency (EPA) approval and funds for part of its response does not entitle the City to a presumption that it has acted consistent with the NCP, since EPA's determination does not mandate that specific City efforts should be presumed consistent with the NCP.

[Other opinions in this case appear at 12 ELR 20915, 14 ELR 20007, 18 ELR 20133, and 19 ELR 21322.]

Counsel for Plaintiff
Seymour Kurland, Frederick C. Bader, Thomas J. Wamser
City of Philadelphia Law Dept., 1540 Municipal Services Bldg., Philadelphia PA
19102
(215) 686-8000

Counsel for Defendants
Patrick T. Ryan, Bonnie Allyn Barnett, Michael J. Holston
Drinker, Biddle & Reath
1100 Philadelphia National Bank Bldg., Philadelphia PA 19107
(215) 988-2700