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Cadillac Fairview/Cal., Inc. v. Dow Chem. Co.

Citation: 14 ELR 20376
No. Nos. CV 83-7996-LTL, -8034-LTL, 21 ERC 1108/(C.D. Cal., 03/05/1984)

The court rules that a recent purchaser of land on which hazardous substances earlier were disposed (1) cannot sue parties made responsible by §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if the site is not on the National Priorities List (NPL) and (2) cannot bring an action for declaration of the liabilities of itself and the responsible parties if the Environmental Protection Agency (EPA) has not commenced a CERCLA action concerning the site. The court first rules that it will treat defendants' motions to dismiss as grounded in plaintiff's alleged failure to state a claim upon which relief can be granted.

The court next rules that past owners of land upon which hazardous wastes have been disposed who neither received nor disposed of the wastes are not liable for damages under CERCLA §107. Section 107(a)(2) limits liability of those who were owners and operators at the time of disposal. The court rules that the liability provisions of §107(a) also apply to §106 so that past landowners are excluded from §106's coverage as well. The court dismisses state law pendent claims against the past landowner defendants and grants their motion to dismiss the federal action.

The court rules that two defendants—one who previously owned the site and used it for disposal of its own and others' hazardous wastes, and the other who disposed of its own wastes at the site—are not liable to plaintiff for damages under §107. For a private party to collect damages under §107 it must have incurred response costs "consistent with the National Contingency Plan [NCP]." The court rules that to be consistent with the NCP, the response action must concern a site on the EPA-promulgated NPL. In a previous case concerning a site not listed on the NPL, the issue was whether consistency had been pleaded, not whether it existed in fact, and at the time the Agency had not yet promulgated the NPL. The court concludes that to allow a private plaintiff to sue under §107 concerning a non-NPL site would undermine the intent of Congress that the NCP and its NPL guide the hazardous waste cleanup effort. The court also rules that plaintiff has no private right of action for injunctive relief against these two defendants. It rules that §106 creates no implied private right of action. CERCLA provides a comprehensive remedy that would seem to preempt any federal common law remedy and specifies that § 106 actions for injunctive relief are to be brought by the federal government. Moreover, §107's express provision for private actions is evidence that Congress clearly did not intend to allow private actions under §106.

Finally, the court rules that plaintiff's action for a declaratory judgment of its nonliability and defendants' liability under CERCLA is not ripe. No actual controversy exists because EPA has no plans to take action under CERCLA concerning the site. Plaintiff's claim that it has incurred cleanup costs is not persuasive. Having no jurisdiction over federal claims, the court dismisses the pendent state claims against the two waste generators.

Counsel for Plaintiff
Wayne W. Smith
Gibson, Dunn & Crutcher
333 S. Grand Ave., Los Angeles CA 90071
(313) 229-7000

Thomas H. Truitt
Wald, Harkrader & Ross
1300 19th St. NW., Washington DC 20036
(202) 828-1200

Counsel for Defendants
Stephen T. Swanson
Lawler, Felix & Hall
700 S. Flower St., Los Angeles CA 90017
(213) 629-9300

Richard J. Magasin, Deputy Attorney General
3580 Wilshire Blvd., Suite 800, Los Angeles CA 90010
(213) 736-2606
Lee R. Tyner
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2992

From the Bench