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Coburn v. Sun Chem. Corp.

Citation: 19 ELR 20256
No. No. 88-0120, 28 ERC 1665/(E.D. Pa., 11/09/1988)

The court holds that costs of medical screening and future medical monitoring are not response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and plaintiffs cannot maintain a citizen suit under the Resource Conservation and Recovery Act (RCRA) against two former owners of a hazardous waste site. The court first rules that medical screening and future medical monitoring costs are not "necessary costs of response" under CERCLA §107(a). CERCLA does not define the phrase "necessary costs of response," and "response" is defined only as "remove, removal, remedy and remedial action." The statutory definitions of each of these terms do not contain any references to medical expenses and clearly contemplate only the cleanup of toxic substances. CERCLA's medical care provisions, which created the Agency for Toxic Substances and Disease Registry in §104(i) to provide medical care and testing to exposed individuals, are separate from the liability provisions in §107. That Congress considered including medical monitoring costs in CERCLA but deleted it from the final bill supports the court's conclusion.

The court holds that plaintiffs' citizen suit under RCRA §7002(a)(1)(A) against two former owners of the site must be dismissed, since any violations would necessarily be wholly past violations. Although one of these defendants may be the owner of drums left at the site, RCRA requires only the owner or operator of the facility that stores the drums to have a permit. Turning to the claims against the current owner, the court notes that plaintiffs cannot simultaneously bring claims alleging that defendant operated a hazardous waste facility without a permit in violation of RCRA § 3005(a) and operated an "open dump," since RCRA's definition of open dump excludes hazardous waste disposal facilities. Plaintiffs cannot proceed under the imminent hazard provision in RCRA §7003(a), since only the Administrator of the Environmental Protection Agency can file suit under this provision. The court holds that plaintiffs' claim under RCRA §7002(a)(1)(B) is not barred by EPA's consent agreement and order under CERCLA §106 and a state agency's order requiring a defendant to develop a remediation plan, since these orders deal with underground contamination and plaintiffs seek surface cleanup of the hazardous wastes.

Counsel for Plaintiff
Albert Slap
Slap, Williams & Cuker
Ste. 960, One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Defendant
Barry M. Klayman
Wolf, Block, Schorr & Solis-Cohen
12th Fl., Packard Bldg., 15th & Chestnut, Philadelphia PA 19102
(215) 977-2000

Susanna E. Lachs, Judah I. Labovitz
Cohen, Shapiro, Polisher, Sheikman & Cohen
22nd Fl., PSFS Bldg., 12 S. 12th St., Philadelphia PA 19107-3981
(215) 922-1300