City of Philadelphia v. Stepan Chemical Co.

No. 81-0851 (E.D. Pa. August 23, 1983)

The court certifies for interlocutory appeal its ruling, 12 ELR 20915, that Philadelphia may claim damages under the Comprehensive Environmental Response, Compensation, and Liability Act from a generator whose hazardous wastes were illegally dumped in a city landfill. The court rules that certification is warranted since there is a controlling question of law with substantial ground for difference of opinion and resolution of the question may avoid protracted litigation. However, the court refuses to certify or reconsider its dismissal of Philadelphia's federal common law nuisance claim, finding no support for the city's claim that federal common law has not been preempted. The court also refuses to certify or reconsider its dismissal of plaintiff's state statutory claims, reiterating its earlier conclusion that the statutes provide no basis for imposing strict liability on generators of hazardous waste.

Counsel for Plaintiff
Ralph Pinkus, Albert J. Slap, Martha Gale
Office of the City Solicitor
1500 Municipal Services Bldg., Philadelphia PA 19107
(215) 686-5244

Counsel for Defendants
Patrick T. Ryan, Cynthia J. Giles
Drinker, Biddle & Reath
1100 Philadelphia Nat'l Bank Bldg., Philadelphia PA 19107
(215) 988-2700

[14 ELR 20007]

Ditter, J.:

Memorandum and Order

In this case, the City of Philadelphia seeks damages for the illegal [14 ELR 20008] use of its landfill as a dumping place for toxic waste. Defendants generated the substances in question but had paid others to dispose of them. By a prior order, I granted the defendants' motion for judgment on the pleadings, FED. R. CIV. P. 12(c), with regard to the city's claims under the federal common law of nuisance, the Pennsylvania Solid Waste Management Act, 35 PA. CONS. STAT. ANN. § 6018.101 et seq. (Purdon 1982) (the SWMA), and the Pennsylvania Clean Streams Law, 35 PA. CONS. STAT. ANN. § 691.1 et seq. (Purdon 1982). City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135 [12 ELR 20915] (E.D. Pa. 1982). In addition, I refused the defendants' motion with regard to the City's claim under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Presently before me are the defendants' motion, pursuant to 28 U.S.C. § 1292(b), for certification for the City's CERCLA claim, and the plaintiff's motion for reconsideration of this decision insofar as I dismissed its claims under the SWMA, the Clean Streams Law, and the federal common law of nuisance. The plaintiff has also requested that, in the event I deny its motion for reconsideration, I certify the issues presented by these dismissed claims for an interlocutory appeal. For the reasons which follow, I will grant the defendants' motion for certification, deny the City's motion for reconsideration, and refuse its request for certification.

A. Defendants' Motion for Certification

In order for an issue to be certified pursuant to 28 U.S.C. § 1292(b), three factors must be present; (1) there must be a controlling question of law; (2) there must be a substantial ground for a difference of opinion with respect to that question; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). See generally Zenith Radio Corporation v. Matsushita Electric Industrial Co., 478 F. Supp. 889, 943-46 (E.D. Pa. 1979). In addition, the district court must remain mindful that section 1282(b) is intended "to be used only in exceptional cases where an immediate appeal may avoid protracted and expensive litigation." Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958). See also Mattioni, Mattioni & Mattioni, Ltd. v. Ecological Shipping Corp., 530 F. Supp. 910, 917 (E.D. Pa. 1981). It is evident that all criteria have been satisfied with regard to the issue of whether the City, as the owner and operator of a landfill at which hazardous substances were disposed has stated a claim against other allegedly responsible persons under CERCLA.

With respect to the first consideration, my resolution of this issue presents a controlling question of law. This decision "if erroneous, would be reversible error on final appeal." Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.) (en banc), cert. denied, 419 U.S. 885 (1974). As it currently stands, because no diversity of citizenship exists between the parties, the only basis for federal jurisdiction is the CERCLA claim. Should the Third Circuit decide that the City cannot assert a claim against these defendants under this statute, the remaining, pendent state claims in all likelihood would be dismissed for want of jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); Broderick v. Associated Hospital Service of Philadelphia, 536 F.2d 1, 8 n.25 (3d Cir. 1976); Roman v. Appleby, 558 F. Supp. 449, 461 (E.D. Pa. 1983). In light of this jurisdiction uncertainty, the first condition for certification has been satisfied. See Katz v. Carte Blanche Corp., 496 F.2d at 755 (dismissal for want of jurisdiction is a controlling question of law under § 1292(b)).

Secondly, although I remain firmly convinced that my decision regarding the CERCLA issue is correct, this question appears to be one of first impression. This is due in part to the embryonic nature of CERCLA litigation and in part to the novel facts of the present case. In addition, as I noted in my prior opinion, this statute is hardly a "model of clarity," 544 F. Supp. at 1142, a deficiency which is exacerbated by its somewhat murky legislative history. These considerations support a conclusion that this issue presents a substantial ground for a difference of opinion.

Finally, an interlocutory appeal may materially advance the ultimate termination of this litigation. As I previously stated, the CERCLA claim is the only remaining basis for federal jurisdiction in this action. Moreover, this claim presents many novel and complex issues which may consume an appreciable amount of the litigants' time and resources in the pre-trial and trial stages. Thus, the interests of judicial economy and the preservation of resources weigh in favor of certification.

For the foregoing reasons, pursuant to Third Circuit Rule 23, I will certify in an accompanying order the following controlling question of law: May the City of Philadelphia, itself a potentially liable party under 42 U.S.C. § 9607(a) because of its status as an owner and operator of a facility at which hazardous substances have been disposed, asset a claim against other allegedly responsible persons to recover its "necessary costs of response" pursuant to 42 U.S.C. § 9607(a)(4)(B)?

B. Plaintiff's Motions for Reconsideration Or, In the Alternative, For Certification

The City seeks a reconsideration of my dismissal of its federal common law of nuisance claim, its Pennsylvania Solid Waste Management Act (SWMA) claim, and its Pennsylvania Clean Streams Law claim, or, in the alternative, requests that I certify these issues for appeal in conjunction with the CERCLA issue. I will refuse both requests.

As I discussed in some detail in my prior opinion, there is little question that the federal common law of nuisance, first recognized by the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91 (1972) [2 ELR 20201] (Milwaukee I), has been preempted by Congressional enactments passed shortly after that decision was announced. The abolishment of this common law cause of action was confirmed by the Court in City of Milwaukee v. Illinois, 451 U.S. 304 (1981) [11 ELR 20406] (Milwaukee II), and Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 [11 ELR 20684] (1981). The breadth of this preemption has been recognized without hesitation by other courts. See, e.g., Illinois v. Outboard Marine Corp., Inc., 650 F.2d 473, 475-78 [12 ELR 20797] (7th Cir. 1982); Marquez-Colon v. Reagan, 668 F.2d 611, 614 n.2 [12 ELR 20286] (1st Cir. 1981); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1107 n.1 [12 ELR 20954] (D. Minn. 1982); United States v. Kin-Buc, Inc., 532 F. Supp. 699 [12 ELR 20977] (D.N.J. 1982). See also In re Oswego Barge Corp., 664 F.2d 327 [12 ELR 20119] (2d Cir. 1981). The single case relied upon by the City in its motion for reconsideration, Sporhase v. Nebraska, 102 S. Ct. 3456 [12 ELR 20749] (1982), to support its claim that the federal common law of nuisance remains a viable cause of action, is patently inapposite. In Sporhase, the Supreme Court held that a Nebraska statute requiring reciprocity as a condition to obtaining a permit for the transportation of groundwater violated the commerce clause. The Court was never presented with, nor did it address, any issue pertaining to the federal common law of nuisance.

Second, the City asserts that the defendants, as generators of hazardous wastes, are liable pursuant to Section 401(b) of the Pennsylvania Solid Waste Management Act, 35 PA. CONS. STAT. ANN. § 6018.401(b). I previously held, 544 F. Supp. at 1148-50, and continue to hold, that this statute does not create any basis for liability for generators of hazardous waste who have contracted with third parties for its disposal. The City argues that Section 401(b) creates non-delegable duties for generators which may not be avoided by giving the waste to independent contractors for disposal. however, whether these duties are delegable or not under Section 401(b) begs the question. The statute clearly applies only to those persons "carrying on" the storage, transportation, treatment, and disposal of hazardous wastes. Because the defendants only generated but did not dispose of the wastes, this statute is inapplicable and consequently it imposes no duty, delegable or non-delegable, upon them.

The City also contends that my interpretation of Section 401(b) frustrates the legislative intent behind the SWMA which was designed to protect the public from the dangers of hazardous wastes. 35 PA. CONS. STAT. ANN. § 6018.102(4). I addressed this argument earlier, stating:

However salutory this principle may be in the abstract, it cannot justify reading a provision into the statute in the absence of supporting language. It may well be that the imposition of strict liability upon generators of hazardous waste who did not themselves dispose of it would be beneficial both for the environment and for parties injured by improper [14 ELR 20009] disposal practices. However, it is not for me to infer such a liability into a statutory provision which does not support that construction. 544 F. Supp. at 1149-50 (citations omitted).

Finally, the plaintiff asserts that pursuant to the Pennsylvania Clean Streams Law, 35 PA. CONS. STAT. ANN. § 691.1 et seq., it may recover its costs incurred in abating the nuisance created by the disposal of these wastes. I previously determined that this statute supports only a claim for injunctive relief, rather than money damages. 544 F. Supp. at 1150-51. See PA. CONS. STAT. ANN. § 691.601(a), (c). The City now cites the recent Third Circuit decision of United States v. Price, 688 F.2d 204 [12 ELR 21020] (3d Cir. 1982), in support of its proposition that money damages are recoverable under this act. While Price does recognize "the fact that an injunction may require the payment or expenditure of money does not necessarily foreclose the possibility of equitable relief," id. at 212, it does not control the present issue. In Price, the court considered whether the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6973 et seq., permitted the district court to order injunctive relief requiring the defendant to fund a diagnostic study of a landfill as the first step in the abatement of a toxic hazard. After reviewing the expansive language contained in these statutes, the Third Circuit determined that Congress intended such injunctive relief to be available. In contrast, the Pennsylvania legislature chose not to include such broad language and I am therefore unwilling to infer a similar legislative intent. I remain convinced that monetary damages for its abatement costs is a remedy not available to the City under this act.

For the foregoing reasons, the plaintiff's motion for reconsideration will be denied. In addition, because I believe that none of the issues present a controlling question of law as to which there is a substantial ground for a difference of opinion, I will refuse its request to certify these issues for an interlocutory appeal.

Order

AND NOW, this 22nd day of August, 1983, for the reasons expressed in the foregoing Memorandum it is hereby ordered:

1. Plaintiff's motion for reconsideration is denied;

2. Plaintiff's request for certification pursuant to 28 U.S.C. § 1292(b) is denied;

3. Defendants' motion for certification is granted;

4. Pursuant to 28 U.S.C. § 1292(b) and Third Circuit Rule 23, the following controlling question of law is certified for appeal: May the City of Philadelphia, itself a potentially liable party under 42 U.S.C. § 9607(e) because of its status as an owner and/or operator of a facility at which hazardous substances have been disposed, assert a claim against other allegedly responsible persons to recover its "necessary costs of response" pursuant to 42 U.S.C. § 9607(a)(4)(B)?