Wehner v. Syntex Corp.

No. 83-642 C(2) (E.D. Mo. December 30, 1983)

The court holds that plaintiffs' claim for response costs under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not governed by the criteria for actions against the superfund under CERCLA § 111. The court holds that plaintiffs have stated a claim against defendants for hazardous waste site cleanup costs under § 107 of CERCLA even though they do not allege that the conditions for recovery against the fund under § 111 are met.CERCLA clearly states that § 107 liability is "notwithstanding any other provision or rule of law," thus making the two remedies independent. The court dismisses plaintiffs' numerous state law claims without prejudice, ruling that as the state law issues predominate, it will leave them for resolution by state courts.

Counsel for Plaintiffs
Murry A. Marks
2025 S. Brentwood, Suite 207, St. Louis MO 63144
(314) 961-2232

John L. Doskocil
Doskocil & Pulos
P.O. Box 8659, St. Louis MO 63126
(314) 965-8500

Counsel for Defendants
Robert L. Driscoll
Stinson, Mag & Frizzell
P.O. Box 19251, Kansas City MO 64141
(816) 842-8600

Paul S. Brown
Brown, James & Rabbitt
705 Olive St., Suite 1100, St. Louis MO 63101
(314) 421-3400

[14 ELR 20265]

Filippine, J.:

Memorandum

This matter is before the Court on the motion of Independent Petrochemical Corporation (IPC) to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This litigation arises out of the activities of Russell Bliss, who although not a party to this litigation, disposed of dioxin laden oil. The plaintiffs allege that "Russell Bliss worked under sub-contract with IPC," and further assert that "IPC . . . knew or should have known the nature and substance of Russell Bliss's activities." Plaintiffs seek to recover necessary response costs¹ under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), codified at 42 U.S.C. § 9601-9657. In addition plaintiffs seek damages and injunctive relief based upon various state [14 ELR 20266] law claims through the use of this Court's discretionary power of pendent jurisdiction.²

CERCLA was passed by Congress in response to the growing threat to life and well-being posed by hazardous substances and toxic wastes. CERCLA provides "both a comprehensive regulatory scheme for, and a revenue procedure to fund federal responses to, releases of hazardous substances." Dore, The Standard of Civil Liability for Hazardous Waste Disposal Activity: Some Quirks of Superfund, 57 NOTRE DAME LAW.260 (1981). CERCLA, inter alia, created a hazardous substance response trust fund commonly known as the superfund. 42 U.S.C. § 9631. This fund it to be used in the payment of "governmental response costs in the cleanup of hazardous substance deposits and spills." Dore, supra, 57 NOTRE DAME LAW. at 268. 42 U.S.C. §§ 9611, 9631(c)(a). The fund also allows "payment of any claim for any other person as a result of carrying out the national contingency plan . . . [p]rovided, however, that such costs must be approved under said plan and certified to the responsible federal official." 42 U.S.C. § 9611(a)(2).³

In addition to claiming against the fund CERCLA allows any person to recover necessary response costs consistent with the national contingency plan from "any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such persons, from which there is a release, or a threatened release which causes the incurrence of response costs . . . ." This limited right of private action is "notwithstanding any other provision or rule of law," and subject only to certain specified defenses. 42 U.S.C. § 9607(a). Plaintiffs are asserting a claim against defendants under 42 U.S.C. § 9607.

Defendant IPC asserts, however, that the requirements to be followed when a person is presenting a claim for response costs under the fund must be followed when seeking recovery of response costs against an entity or individual under 42 U.S.C. § 9607. The clear meaning of the statute, however, cannot bear this interpretation. In assessing liability for response costs against those liable under 42 U.S.C. § 9607, CERCLA clearly indicates that liability under § 9607 is not subject to any other provision or rule of law. Thus, liability under 42 U.S.C. § 9607 cannot possibly be governed by the requirements of 42 U.S.C. § 9611 for recovery of response costs under the fund. Plaintiffs therefore do state a claim under CERCLA.

The liability under 42 U.S.C. § 9607 for response costs, however, is limited and far different from the type of liability plaintiffs seek to impose upon defendants under their state law claims. The plaintiffs' complaint asserts nine different Missouri state law cases of action and involves many complex questions of state law. The legal and factual questions on these state law causes of action clearly substantially predominate the limited issues raised under the CERCLA claim.It is well settled that when "it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966).Accordingly, in the exercise of its discretion, this Court determines that plaintiffs' state law claims should be dismissed without prejudice.

1. Respond or response as used in CERCLA means "remove, removal, remedy and remedial action." 42 U.S.C. § 9601(25) involving a hazardous substance.

2. Originally the plaintiffs sought to invoke this Court's jurisdiction based upon diversity of citizenship, 28 U.S.C. § 1331, but now concede that there is not complete diversity as required under Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Thus the sole basis for the state law claim contained within plaintiffs' complaint is the discretionary doctrine of pendent jurisdiction outlined in United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

3. The national contingency plan in CERCLA is defined to be "the national contingency plan published under section 1321(c) of Title 33 or revised pursuant to section 9605 of this title." CERCLA required the National Contingency Plan to be revised within 180 days of the enactment of CERCLA. 42 U.S.C. § 9605. The Plan, however, was not revised within the prescribed time and on February 12, 1982, the District Court for the District of Columbia ordered the EPA to publish the revised Plan after providing opportunity for public comment. The EPA published its final version of the revised plan on July 16, 1982. 47 Fed. Reg. 31180 (1982) (to be codified at 40 C.F.R. § 300).