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M.R. (Vega Alta), Inc. v. Caribe Gen. Elec. Prods., Inc.

ELR Citation: 29 ELR 20586
Nos. 97-2294, 31 F. Supp. 2d 226/48 ERC 1025/(D.P.R., 12/03/1998)

The court holds that it has subject matter jurisdiction over property owners' Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claim against private companies for response costs relating to the contamination of their water supply, but the court does not have jurisdiction over CERCLA claims against the U.S. Environmental Protection Agency (EPA) that challenge an ongoing remedial action. The court first holds that the owners sufficiently stated a claim for response costs recognized by CERCLA. The owners allege that they have incurred and will continue to incur costs in securing and providing alternate drinking water for current and future needs at their properties as a result of the private companies' past and continuing releases of hazardous substances. However, CERCLA does not recognize a claim to recover costs beyond those needed to make the site safe for its current use. Thus, only the owners' claim for recovery of costs for drinking water to fulfill current needs is viable. The court next holds that owners' citizens suit satisfies CERCLA §113(h)(2)'s exception insofar as they seek enforcement of the CERCLA §106 order that EPA issued to the companies requiring them to remedy the polluted groundwater. The court then holds that, with the exception of the owners' request for a five-year review of the ongoing remedy, all of the owners' allegations in the citizens suit brought pursuant to CERCLA §310(a)(2) against EPA are actually challenges to an ongoing response action that EPA has taken within the meaning of §113(h) and are, therefore, barred. The owners wish to require EPA immediately to (1) initiate control of soil contamination by use of certain technologies, (2) initiate extraction and treatment of contaminated groundwater, and (3) conduct and act on the findings of a remedy review. In order to provide this type of relief though, the court could not avoid interfering with EPA's cleanup efforts and running afoul of §113(h)'s mandate prohibiting citizen suits challenging ongoing CERCLA cleanup actions. The court further holds that the owners' identical demand sounding under the Administrative Procedure Act also lacks subject matter jurisdiction, because §113(h) precludes any challenges to CERCLA removal actions.

The court next holds that the owners failed to state a claim under the Federal Tort Claims Act (FTCA). The controversy here wholly concerns EPA's alleged failure to perform its regulatory functions vis-à-vis the companies who allegedly violated federal laws and rules, and EPA's regulatory duty to oversee and direct environmental cleanup under CERCLA does not give rise to a legal obligation sufficient to support a cause of action under the FTCA. By undertaking to monitor compliance with federal environmental regulations and by subsequent alleged negligence in the course of that monitoring, EPA has not worsened the harm to the owners and the site. Moreover, EPA neither owed a duty of care to the owners nor induced detrimental justified reliance on the part of the owners. The court then holds that the owners have sufficiently alleged in their complaint all of the elements to state a claim for tortious interference by third parties with contractual obligations under Puerto Rico law. The court also holds that the owners adequately stated a cause of action as third-party beneficiaries of the contracts between the companies and the government of Puerto Rico. Last, the court dismisses the owners' nuisance and trespass claims against two of the companies as time barred by the one-year statute of limitations. A continuous tort under Puerto Rico law is ongoing unlawful conduct, not a continuing harmful effect. For there to be a continuous tort, the companies must be continuously acting (i.e., continuing to dump pollutants on the owners' land). While the pollutants may constantly enter the owners' property, since the pollutants themselves are not defendants, their constant action is not a continuous act on the part of the companies.

Counsel for Plaintiffs
Margaret N. Strand
Oppenheimer, Wolff, Donnelly & Bayh
1350 I St. NW, Ste. 200, Washington DC 20005
(202) 312-8000

Counsel for Defendants
Langley R. Shook
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271