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Wickland Oil Terminals v. Asarco, Inc.

ELR Citation: 16 ELR 20754
Nos. No. 85-1962, 792 F.2d 887/24 ERC 1545/(9th Cir., 06/20/1986) Rev'd & remanded in part

The court rules that neither the incurrence of governmental response costs nor a governmentally authorized cleanup program is a prerequisite to a private cost recovery action under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court initially rejects defendant's argument that the word "other" in the phrase "any other necessary costs of response" in §107(a)(2)(B) means that the government must incur response costs under §107(a)(2)(A) before a private party may recover "other" response costs. A more plausible interpretation is that the word "other" simply serves to distinguish between governmental and private response costs. Moreover, a comparison with §111(a)(2), which requires prior approval for reimbursement of private response costs by the federal government, indicates that Congress could be specific when it wished to impose a clear prerequisite of governmental approval on a private recovery action. The court rules that a private party need not obtain governmental approval prior to instituting its cost recovery action in order to be consistent with the national contingency plan (NCP). The plan outlines a prominent role for the lead governmental agency involved, but this does not necessarily preclude suit by private parties seeking response costs under §107. Section 107 arguably does not require strict compliance with the NCP as long as the private party's response measures promote the plan's purposes. The court rules that the interpretation of the NCP's role by the Environmental Protection Agency in the preambles to the proposed and final rules revising the 1982 NCP that lead agency approval is not required before a private party may maintain a §107 action is reasonable and confirms the court's own interpretation. The court next holds that plaintiff's testing of the site in question for evidence of the presence of hazardous wastes is a response cost within the meaning of §107(a)(2)(B). Response costs include expenses incurred to monitor and evaluate the threat of release of hazardous substances.

The court holds that plaintiff's claim under the Declaratory Judgment Act is ripe for judicial review. The controversy between plaintiff and defendant concerning liability under CERCLA for the presence of any hazardous wastes at the site is real; that absence of any governmental enforcement actions against plaintiff does not make this controversy remote or hypothetical. Injunctive relief, to compel defendant to clean up the site, may also be available. Finally, the court holds that it does not have jurisdiction over plaintiff's appeal of its voluntary dismissal of its claim for declaratory relief against the California Land Commission, an owner of a portion of the site.

[The district court opinion in this case appears at 14 ELR 20494.]

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

Counsel for Defendants-Appellees
C. MacNeil Mitchell
Breed, Abbott & Morgan
Citicorp Ctr., 153 E. 53rd St., New York NY 10022
(212) 888-0800

Ellyn S. Levinson, Deputy Attorney General
Dept. of Justice, 1515 K St., Ste. 511, Sacramento CA 95814
(916) 324-5437