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Wickland Oil Terminals v. Asarco, Inc.

Citation: 14 ELR 20494
No. No. C83-5906 SC, 590 F. Supp. 72/21 ERC 1640/(N.D. Cal., 05/04/1984)

The court rules that private party recovery of response costs under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is limited to cases where the government has initiated a response action. The court first holds that plaintiff's claim for a declaratory judgment that defendants are solely liable under CERCLA for hazardous substances on property purchased by plaintiff from defendants is not ripe for adjudication. Actions by a state agency concerning cleanup of the site are not CERCLA enforcement actions because there has been no cooperative agreement under CERCLA § 104(d)(1) between the Environmental Protection Agency and the state agency concerning this site. Furthermore, the court concludes, the state actions to date, including listing the site on its priority list of hazardous waste sites, do not assure that the state will take any enforcement action. Thus the alleged controversy is too remote and speculative for judicial resolution. The court also rules that plaintiff's claim for an injunction ordering defendants to clean up the hazardous substances fails along with its unripe declaratory judgment claim.

The court rules that plaintiff may not recover testing costs it incurred at the site under CERCLA § 107(a)(2)(B), holding that such costs are recoverable only in the context of a government-initiated and -directed cleanup program. The language of the statute suggests that Congress intended this to limit private party cost recovery, and the structure of the overall response mechanism established by the Act confirms that suggestion. The use of the words "any other necessary costs" in § 107(a)(2)(B) indicates an intent to make private cost recovery subordinate to the government cost recovery authorized by § 107(a)(2)(A). Moreover, the statute and National Contingency Plan promulgated to guide cleanup actions contemplate governmental initiation and direction of such actions. Absent a government-authorized CERCLA action at the site, the cost recovery action is not ripe.

Counsel for Plaintiff
Joseph A. Darrell, James Collins
Thelen, Marrin, Johnson & Bridges
Two Embarcadero Ctr., Suite 2200, San Francisco CA 94111
(415) 392-6320

Counsel for Defendants
Randy M. Mott, Tracy M. Getz
Breed, Abbott & Morgan
1875 I St. NW, Washington DC 20006
(202) 466-1100

Charles F. Preuss
Bronson, Bronson & McKinnon
Bank of America Ctr., 555 California St., San Francisco CA 94106
(415) 391-4500

Ellyn Levinson
Office of the Attorney General
3580 Wilshire Blvd., Suite 600, Los Angeles CA 90010
(213) 736-2230