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United States v. Allied Chem. Corp.

Citation: 14 ELR 20519
No. No. C 83-5898-SC, 587 F. Supp. 1205/20 ERC 2276/(N.D. Cal., 04/27/1984) Defendants' motions to dismiss

The court rules that a claim by the government for response costs and natural resources damages under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must comply with the notice requirement of CERCLA § 112(a). Initially, the court rules that the presence of hazardous substances on land at the time of the sale of the land does not breach a warranty to convey the property free of encumbrances. The presence of hazardous substances does not constitute an "encumbrance," a term that the authorities cited by plaintiff have limited to third-party legal interests such as liens and restrictive covenants.

The court next rules that the procedure established by CERCLA § 112(a) for claims against the Superfund applies to federal actions under § 107. Section 112(a) requires a "claimant" to present a written claim to alleged responsible parties and to allow 60 days for satisfaction before seeking reimbursement from the Superfund or suing the responsible parties. The Act defines "claimant" as "any person" seeking compensation under the chapter that includes CERCLA §§ 107 and 112, and its definition of "person" includes the federal government. Since, the court rules, a § 107 cost recovery action is a claim under the same chapter, § 112(a) applies to § 107 actions. The court further rejects plaintiff's argument that § 112(a) does not apply to federal government actions, because § 107(g) states that the Act applies to federal agencies with equal force as to private entities. However, the court allows plaintiff to amend its complaint to allege compliance with the notice requirement. The court then rules that a letter plaintiff sent to defendant more than 60 days prior to the filing of the instant action satisfies the requirements of $ 112(a). Although the Act defines "claim" as a written demand for a sum certain, the government need not have specified a sum since it sought future remedial costs and natural resources damages that were immeasurable at the time of notice.

The court also rules that plaintiff's complaint alleged sufficient facts to put defendant on notice that it was considered a party "responsible" for releases of "hazardous substances" under CERCLA. In addition, plaintiff alleged sufficient facts to support its claims for nuisance and trespass. Finally, the court rejects defendant's motion for a more definite statement under FED. R. CIV. P. 12(e).

Counsel for Plaintiff
Charles M. O'Connor, Rodney H. Hamblin, Ass't U.S. Attorneys
450 Golden Gate Ave., 16th Floor, San Francisco CA 94102
(415) 556-2245

Counsel for Defendant
Barry T. Goode
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000

David W. Long
Southern Pacific Transportation Co.
Souther Pacific Bldg., One Market Plaza, Rm. 826, San Francisco CA 94105
(415) 541-1769