Cadillac Fairview/California, Inc. v. Dow Chemical Co.

Nos. CV 83-7996-LTL, -8034-LTL (C.D. Cal. March 5, 1984)

The court rules that a recent purchaser of land on which hazardous substances earlier were disposed (1) cannot sue parties made responsible by § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if the site is not on the National Priorities List (NPL) and (2) cannot bring an action for declaration of the liabilities of itself and the responsible parties if the Environmental Protection Agency (EPA) has not commenced a CERCLA action concerning the site. The court first rules that it will treat defendants' motions to dismiss as grounded in plaintiff's alleged failure to state a claim upon which relief can be granted.

The court next rules that past owners of land upon which hazardous wastes have been disposed who neither received nor disposed of the wastes are not liable for damages under CERCLA § 107. Section 107(a)(2) limits liability of those who were owners and operators at the time of disposal. The court rules that the liability provisions of § 107(a) also apply to § 106 so that past landowners are excluded from § 106's coverage as well. The court dismisses state law pendent claims against the past landowner defendants and grants their motion to dismiss the federal action.

The court rules that two defendants — one who previously owned the site and used it for disposal of its own and others' hazardous wastes, and the other who disposed of its own wastes at the site — are not liable to plaintiff for damages under § 107. For a private party to collect damages under § 107 it must have incurred response costs "consistent with the National Contingency Plan [NCP]." The court rules that to be consistent with the NCP, the response action must concern a site on the EPA-promulgated NPL. In a previous case concerning a site not listed on the NPL, the issue was whether consistency had been pleaded, not whether it existed in fact, and at the time the Agency had not yet promulgated the NPL. The court concludes that to allow a private plaintiff to sue under § 107 concerning a non-NPL site would undermine the intent of Congress that the NCP and its NPL guide the hazardous waste cleanup effort. The court also rules that plaintiff has no private right of action for injunctive relief against these two defendants. It rules that § 106 creates no implied private right of action. CERCLA provides a comprehensive remedy that would seem to preempt any federal common law remedy and specifies that § 106 actions for injunctive relief are to be brought by the federal government. Moreover, § 107's express provision for private actions is evidence that Congress clearly did not intend to allow private actions under § 106.

Finally, the court rules that plaintiff's action for a declaratory judgment of its nonliability and defendants' liability under CERCLA is not ripe. No actual controversy exists because EPA has no plans to take action under CERCLA concerning the site. Plaintiff's claim that it has incurred cleanup costs is not persuasive. Having no jurisdiction over federal claims, the court dismisses the pendent state claims against the two waste generators.

Counsel for Plaintiff
Wayne W. Smith
Gibson, Dunn & Crutcher
333 S. Grand Ave., Los Angeles CA 90071
(313) 229-7000

Thomas H. Truitt
Wald, Harkrader & Ross
1300 19th St. NW., Washington DC 20036
(202) 828-1200

Counsel for Defendants
Stephen T. Swanson
Lawler, Felix & Hall
700 S. Flower St., Los Angeles CA 90017
(213) 629-9300

Richard J. Magasin, Deputy Attorney General
3580 Wilshire Blvd., Suite 800, Los Angeles CA 90010
(213) 736-2606
Lee R. Tyner
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2992

From the Bench

[14 ELR 20377]

Lydick, J.:

These identical complaints were filed December 9 and December 12, respectively. They allege federal causes of action under the Comprehensive Environmental Response, Compensation, and Liability Act, "CERCLA," 42 U.S.C., Section 9601 and following, and state law causes of action.

Plaintiff alleges that it purchased a tract of real property in Torrance, California — which we will refer to from time to time as "the site" — from defendant Cabot, cabot & Forbes Western Development Company on October 28th, 1976.

It further alleges that defendant International Property Development Co. owned the property from December 12, 1972 to August 21, 1974, when it transferred it to defendant Cabot, Cabot & Forbes Western Development Co.

Defendant Cabot, Cabot & Forbes Interim is sued as the successor to both of these entities.

Plaintiff alleges that prior thereto, defendant Shell Oil Co. owned the site from April 19, 1955 to December 12, 1972, and that the property was owned by the Defense Plant Corporation, the Reconstruction Finance Corporation, and the Federal Facilities Corporation from October 16, 1942 until April 15, 1955.

Plaintiff further alleges that while the Government owned the site it permitted others, including defendant Dow, to dump toxic wastes.

It further alleges that while defendant Shell Oil owned the property, it disposed of wastes and permitted others to dispose of wastes on the property.

Defendant Cabot, Cabot & Forbes Interim is sued because plaintiff alleges that its predecessors in interest, International and Cabot, Cabot & Forbes Western, knew of the presence of toxic wastes when they owned the property.

It is claimed that the presence of the wastes was not known to plaintiff when it purchased the property but became known to it when it attempted to lease a portion of the property to a third party, who then rescinded when it discovered the wastes.

The plaintiff has brought nine causes of action, four of which appear to be federal.

The first cause of action is for a declaration that the defendants are liable to it under CERCLA. In this connection we note additional defendants besides those previously named are: Peter Rank, Director of the State Department of Health Services of California; Thomas Heinsheimer, Chairman of the Board of the South Coast Air Quality Management District; Jane Bray, Acting Chairman of the Board of Regional Water Control Board of State of California for Los Angeles region; and Douglas Ferguson, President of the Central and West Basin Water Replenishment District of the State of California.

The second cause of action seeks damages for the expenses of removing the waste from the property.

The third cause of action seeks an injunction requiring defendants Dow, Shell, Interim, and the Administrator of the GSA to remove the waste.

The fourth and fifth causes of action are against Interim for deceit and breach of express warranty through the sale of the property without the disclosure.

The sixth is against Dow, Shell, Interim and the Administrator of the GSA for public nuisance.

The seventh is against defendants Dow, Shell and the Administrator of the GSA for ultrahazardous activity on land.

The eighth is against Dow, Shell, Interim, and the Administrator of the GSA for negligence.

The ninth is for injunction ordering the Administrator of the EPA to administer funds from the CERCLA super fund to clean up the site.

Defendants Heinsheimer, Douglas Ferguson and Rank and Reed, the latter successor to Bray, have answered.

On February 10th, defendant Shell Oil filed this motion to dismiss.

And on February 13th, defendants Cabot, Cabot & Forbes Interim and Dow Chemical filed motions to dismiss.

Jurisdiction is premised on CERCLA, 42 U.S.C., Section 9613(b); 28 U.S.C., Sections 1311 (federal question); Section 1337 (commerce and antitrust); and Section 1349 (granting jurisdiction over actions involving corporations of which the United States is the owner of more than 50 percent of the capital stock); and Section 1361 (an action to require an officer of the United States to perform his duty). The propriety of all of this alleged jurisdiction will later be discussed.

The matter is thus here today on defendant Dow Chemical's motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim;

The motion of defendant Shell Oil Company to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim;

The motion of defendant CC&F Interim to dismiss the complaint for failure to state a claim.

We note that all defendants filed duplicate motions in both [14 ELR 20378] cases, except Shell which filed no motion in case No. 8034, but filed a reply there. All defendants will be treated as having filed a set of motions in each case, and these will be considered together in view of a stipulation for consolidation filed with the Court this morning.

It is noted that since these motions are so similar they will be treated together, keeping in mind the different status of defendant Interim, sued only as a prior owner, and defendants Shell and Dow, who are sued for their dumping activity.

The motions to dismiss have been brought under both Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted.

The arguments put forth, however, are that the plaintiff cannot state a cause of action under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C., 9601, and following, and since this is the premise of federal jurisdiction, the Court lacks subject matter jurisdiction as well.

It is therefore to be treated as a motion to dismiss for failure to state a claim upon which relief can be granted, Federal Rule of Civil Procedure 12(b)(6). Mason v. Unkeless, 618 F.2d 597, 598 (9th Cir. 1980).

In viewing a motion to dismiss under Rule 12(b)(6), the plaintiff's allegations are assumed to be true and the complaint must be construed in the light most favorable to the pleader. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).

Any doubts are to be resolved in favor of the pleader. Amfac Mortgage Co. v. Arizona Mall of Tempe, 583 F.2d 426, 430 (9th Cir. 1978).

A complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The issue is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence in support of the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Of course, if plaintiff cannot state a claim on the federal statute, then the Court is without jurisdiction.

Plaintiff's attempt to circumvent this rule by citing the proposition that a court has jurisdiction over a claim where an interpretation of the United States Constitution or a federal statute plays a not insubstantial role in the suit is not persuasive, for that is the general statement of the requirement of raising a federal question under 28 U.S.C., Section 1331. Duke Power v. Carolina Environmental Study Group, 438 U.S. 59, 70-71 [8 ELR 20545] (1978). This does not apply where a particular statute is at issue.

In Duke Power Co., for example, the question was whether the plaintiff stated a "taking" claim under the Fifth Amendment. In Bell v. Hood, 327 U.S. 678 (1946), also relied on by plaintiff, the claims were based on the Fourth and Fifth Amendments.

Turning first to the CERCLA claims and particularly, first, the statute.

The Comprenensive Environmental Response, Compensation, and Liability Act was passed December 11, 1980 after extensive hearing and some last minute amendments.

The asserted purpose of the legislation is to provide liability, compensation, cleanup and emergency response to hazardous substances released into the environment.

As noted by plaintiff, some believe the measure was passed too hurriedly, and that in doing so many controversial elements, including liability for personal injury, were deleted in order to pass a comprehensive regulatory scheme for waste management before the present administration took office. See Dore, The Standard of Civil Liability for Hazardous Waste Disposal Activity: Some Quirks of the Superfund, 57 NOTRE DATE LAWYER 260 (1981).

The Act authorizes state and federal governments to initiate actions for containment, cleanup and removal of hazardous wastes. 42 U.S.C., Section 9604.

It establishes a Hazardous Substances Response Fund, named the "Superfund," to be financed by both industry and government, 42 U.S.C., Section 9631, which is available to compensate the actions of state and federal governments in the containment, cleanup and removal of such hazardous wastes if the parties responsible cannot be identified or cannot undertake these activities themselves. 42 U.S.C., Sections 9611 and 9612.

42 U.S.C., Section 9607 provides a mechanism for the Government and in certain circumstances private individuals to recover their expenses for response costs and damages to national resources, subject to dollar limits and certain defenses.

Section 9606 permits the President, when there is imminent and substantial danger to public health, welfare or the environment, to have the Attorney General bring a prompt abatement action.

Finally, 42 U.S.C., Section 9605 provides that the President is to prepare a national contingency plan to carry out the provisions of the Act.

Looking first a defendant Cabot, Cabot & Forbes Interim's motion to dismiss, according to the allegations of the complaint, this defendant is sued only because it is the successor in interest to two previous entities: International Property Development Co. and CC&F Western Development Co.

These two parties are claimed to be liable to plaintiff under CERCLA because they owned the site before plaintiff and were "aware at the time that it owned the Site that chemical substances including hazardous wastes and hazardous substances had been disposed of on the Site, and that they failed and continues to fail to undertake any removal, remedial or other action to prevent release of such chemical substances from the Site into the environment." That's included in paragraphs 8 and 9 of the complaint.

This defendant argues on this motion that the scope of liability of the Act is not so broad as to encompass a party who merely owned the site at a previous point in time, who neither deposited nor allowed others to deposit hazardous wastes on the site. This appears to be correct under any but a very strained reading of the Act.

The only provision in CERCLA which imposes liability for cleanup and removal is 42 U.S.C., Section 9607, and it is under this section that plaintiff proceeds.

Section 9607(a) sets forth four classes of action liable under the Act for three types of costs. This defendant fits none of these classes of potential defendant. The only class which might conceivably include this defendant is Section 9607(a)(2) which reads:

Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.

Since this defendant is not alleged to be an owner at any time when the disposals complained of were made, but is alleged to have merely owned the site after such disposal and prior in time to plaintiff's ownership, it cannot be liable under the Act.

Plaintiff has argued that the section includes past as well as present owners because no specification is made. However, none need be made because of the express limitation provided by the words "at the time of disposal." Since this defendant is not in that class, no cause of action under Section 9607 can be stated against it.

Plaintiff has also alleged a cause of action under 42 U.S.C., Section 9606 for injunctive relief against this defendant.

The question of whether plaintiff as a private citizen may bring this cause of action is not necessary for resolution of this issue. Section 9606 does not by its terms create liability in any party; it authorizes lawsuits and injunctions, but does not indicate who may be sued or enjoined.

These provisions are found in Section 9607, and the only posible reading of Section 9606 is that it reaches the same classes of persons as are specified in Section 9607(a). This is the conclusion of the courts which have considered the matter and it is our conclusion as well.

Since there is no way that this defendant may be liable to plaintiff for damages or injunction under the Act, of course no claim for declaratory relief may be stated, either.

Similarly, the state law pendent claims must be dismissed because the Ninth Circuit does not permit pendent party jurisdiction in these circumstances. Ayala v. U.S., 550 F.2d 1196, 1198-1200 (9th Cir. 1977).

It is our conclusion, therefore, that the motion of defendant [14 ELR 20379] Cabot, Cabot & Forbes Interim to dismiss the complaint for failure to state a claim against it for which relief can be granted must be granted.

Next we turn to the motions of defenants Dow and Shell to dismiss the second cause of action for damages under 42 U.S.C., Section 9607.

Section 9607, as previously noted, provides for the liability of certain classes of defendants for certain types of injury.

Defendants do not dispute that they fall within the class of possible defendants, since Shell is alleged to have owned the site and permitted disposal, and Dow is alleged to have conducted disposal on the site.

The defendants argue, however, that the Act does not authorize this type of claim or injury, or, to put it differently, that the plaintiff is not the one to bring the lawsuit.

The disputed provision is 9607(a)(4)(B) which makes a defendant liable "for any other necessary costs of response (beyond 'all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the National Contingency Plan') incurred by any other person consistent with the National Contingency Plan."

The National Contingency Plan appears at 40 C.F.R., Section 300 et seq. Its statutory authority appears at Section 9605, which provides that the President is to revise the National Contingency Plan originally prepared pursuant to 33 U.S.C., Section 1321.

Section 9605 lists a number of detailed problems the Plan must meet, one of the most significant of which is subparagraph (8)(a), which provides that the criteria for determining priorities among releases or threatened releases shall be formulated taking into account numerous factors.

Subparagraph (8)(b) then provides that "Based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the Plan national priorities among the known releases or threatened releases throughout the United States . . ."

What the national recovery plan entails is a systematic reporting requirement of hazardous waste sites by both offenders and the States in which those sites are located, to be sent to the President's designee, the Environmental Protection Agency, for selection of the most dangerous for treatment.

Then the National Priorities List is printed at 48 Fed. Reg. 40658. The preface states that its primary purpose is for informational use by the EPA to identify sites which present a significant risk to public health or the environment. It does not necessarily mean that the EPA will undertake any response action, does not require any action by a private party and does not determine the liability of any party.

Defendants argue that as a minimal prerequisite to commence suit under 42 U.S.C., Section 9607, the site must appear on the List. This appears to be correct, or the requirement that the action be "consistent with the National Contingency Plan" would have no meaning.

Plaintiff has argued that this is not what the phrase means and that such an interpretation would be too restrictive to effectuate the purposes of the Act. Plaintiff has not, however, attempted to explain what the phrase might mean, since plaintiff's interpretation would allow any individual to commence suit under the Act whenever it felt it was appropriate.

The only case that deals with this issue is City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135 [12 ELR 20915] (E.D. Pa. 1982). It supports plaintiff's position to some extent.

There, the plaintiff City of Philadelphia discovered that dumping had occurred on its property, commenced a massive cleanup program estimated to cost $10 million, and brought suit under Section 9607(a) of the Act for its damages.

The major issue raised by the defendant on its motion for judgment on the pleadings was that since the City owned the property it was liable under CERCLA and could not sue.

Defendant advanced two other arguments which the court disposed of in barely a page. One of these was the argument that the expenses had not been incurred as part of the Plan, an argument which was "not advanced with a great deal of clarity." 544 F. Supp. at 1144.

This argument was phrased differently there than here, however, since the gist of it there was the lack of affirmative pleading of compliance with the Plan. On that basis, the court there believed that judgment on the pleadings was inappropriate and I quote, "must await development of the record." See page 1144.

Here, on the other hand, the plaintiff has expressly pleaded that it informed the EPA of the condition of the site and was told in response that, quote:

The site is not on its priority list, that no such plan will be developed, nor will any intensive investigation of the Site be undertaken by the EPA for an extended period of time.

See complaint at paragraph 29.

There is no further factual development necessary here. The fact that the EPA refuses to list the site on the List for further inquiry shows that cleanup activity on the site is not consistent with the Plan.

There is a further distinction in that the List had not been promulgated when the City of Philadelphia decision was made, and the court was not willing to wait, since it noted that the EPA was already tardy in its submission of the Plan.

Permitting the plaintiff to proceed on that set of facts may have been entirely consistent with the legislative intent behind CERCLA, for example, the Administrator of the EPA was urged to take action immediately and not await the completion of the Plan, but "once the Plan has been developed the administrator is required to conform response actions to the Plan to the maximum extent practicable." H.R. No. 96-1016, Part I, May 16, 1980 at p. 30, 1980 U.S. CODE CONG. AND AD. NEWS 6119, 6133.

Footnote 16 to the City of Philadelphia opinion, at page 1144 does present some curious language.

After quoting from the remarks of Senator Randolph that the purpose of the Plan is to promote actions which were both cost effective and environmentally sound, the court states:

Thus, the question of compliance with the National Contingency Plan appears to be related to the recovery of damages and not to the existence of a valid claim for relief.

Exactly what distinction should be drawn between the phrases "recovery of damages" and a "claim for relief" is unclear.

Thus, City of Philadelphia is based on a different set of facts, with different allegations and we find that it is not persuasive in the context of this action.

To permit private suits, as plaintiff wishes, would undermine the perceived Congresstional intent to provide a systematic unified response to hazardous waste problems and read out of Section 9607 entirely the requirement that suits by persons other than Federal and State Governments be consistent with the National Contingency Plan. It would also frustrate the intent behind the Act, which is "to provide for a national inventory of inactive waste sites and to establish a program to deal with those sites." H.R. 96-1016, Part I, May 16, 1980, at page 17, 1980 U.S. CODE CONG. AND AD. NEWS at 6119.

On the set of facts as alleged by the complaint, plaintiff cannot, in our view, state a claim for damages under Section 9607, and the second cause of action must be dismissed as to these defendants.

With respect to the motion of Dow and Shell to dismiss the third cause of action for injunctive relief under Section 9606, plaintiff apparently realizes it is on much thinner ground here than it was on the second cause of action, because the Act is totally devoid of any mention of any private cause of action for injunctive relief.

Plaintiff argues that such acause of action should be implied from the only injunctive relief section, 9606. 9606(a) provides:

In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the District Court of the United States in the district in which the threat occurs shall have [14 ELR 20380] juridsiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

Section 9606(b) provides for the imposition of fines for violation of an order of the President and Section 9606(c) provides for promulgation of guidelines by the EPA for its implementation. From this, plaintiff would have us imply a private cause of action for injunctive relief, basing its argument on Cort v. Ash, 422 U.S. 66 (1975).

There the court looked to four factors in deciding whether a private cause of action should be implied, first, whether the plaintiff is part of a class which is granted a special benefit under the statute; second, whether Congress intended to grant or deny such a remedy; third, whether such a remedy is consistent with the legislative purpose; and, fourth, whether the cause of action is one traditionally a matter of state law.

There are at least two reasons here why total reliance should not be placed on Cort v. Ash.

The first is that a more recent decision of the Supreme Court have stated that the real question is one of legislative intent. Middlesex [Cty.] Sewerage Authority v. [National] Sea Clammers, 453 U.S. 1, 25 [11 ELR 20684]; (1981); Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 23 (1979), relying on Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).

The second reason is that Cort involved a simple penal statute and the question was whether a private cause of action existed consistent with it.

The case currently here under consideration is one in which a much more complex statutory scheme is enacted, with some private cause of action expressly provided. For both these reasons Middlesex [Cty.] Sewerage and Transamerica, previously stated, are more persuasive indications of the current yardstick for examination of the question.

The central question is whether Congress intended to provide a cause of action for injunctive relief. To decide this, the Court must look to the language of the Act, and then the legislative history and other traditional aids in adducing that intent.

In Middlesex, the court examined the Federal Water Pollution Control Act, and the Marine Protection, Research, and Sanctuaries Act of 1972, both of which it found to be elaborate enforcement provisions. That is equally the case here.

Because of perceived loopholes in earlier legislation, CERCLA waspassed. Its provisions are intended to be and appear to be comprehensive, with detailed provisions for gathering data on sites throughout the country, ranking of the most serious hazards, action through the Executive, funding for the program, and provisions for actions both injunctive and for damages against offenders.

In only one section, Section 9607, is there provision made for any private causes of action.

By contrast, Section 9606 contains no such provision, but on the contrary, contains a very restrictive provision for emergency abatement actions.

Further, the very comprehensive nature of the legislation speaks itself against implying anything into it.

It is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.

Transamerica, previously cited, 444 U.S. at 19.

The fact that injunctive actions are to be brought only in a very specific way is further evidence that Congress did not intend it to be done any other way:

When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.

Botany Mills v. U.S., 278 U.S. 282, 289.

Finally, the fact that Section 9607 contains a private cause of action but Section 9606 does not is a very persuasive indication that Congress did not want a private cause of action implied into Section 9606.

As the Supreme Court said in Touche Ross, page 572: Obviously, then, when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly.

Note also that to imply such a cause of action would actually do damage to the Act rather than effectuate its purpose. The carefully drawn measures of Section 9606 would be completely circumvented and the goals of uniformity and ranking would be destroyed. There is simply no reason to believe here that Congress intended anything but what it expressly caused to be printed in the text of the statute.

Defendants' motions to dismiss the third cause of action accordingly is granted.

We now turn to the motion of Dow and Shell to dismiss the first cause of action for declaratory relief.

In the first cause of action, plaintiff seeks a judicial determination "of the persons who are responsible under CERCLA for removal of hazardous substances from the Site or for any other remedial, removal or other action required to abate further environmental damage and to eliminate any risk of bodily injury or sickness, resulting from hazardous wastes and hazardous substances disposed of on the Site."

It also seeks a judicial declaration that "it has no liability under Sections 106 or 107 of CERCLA, or under any other applicable statute, regulation, or principle of common law, for costs of removal or remedial action incurred by the United States, the State of California, or any agencies of departments thereof or created thereby, or for any other costs of response incurred by any other person, or for damages for injury to, destruction of, or loss of natural resources, and has no obligation to take any removal or remedial action, by reason of or relating to the hazardous wastes and hazardous substances disposed of on the site." This is found in the complaint, paragraph 34. Some further specification is requested as well, but that pretty well covers it.

28 U.S.C., Sections 2201 and 2202, the Declaratory Judgments Act, does not provide jurisdiction. Rather, jurisdiction must exist by some other provision, and then this Act may be used to provide declaratory relief. Jurisdiction over these defendants exists only under 42 U.S.C., Section 9613(b), under CERCLA.

Also, the question of whether a particular case merits declaratory relief is committed to the sound discretion of the trial court. Cheeseborough-Pond's, Inc. v. Faberge, Inc., 666 F.2d 393 (9th Cir. 1982).

In order to invoke the Court's ability to declare the rights of parties in a particular controversy, there must be "a case of actual controversy," 28 U.S.C., Section 2201.

This "actual controversy" requirement is the same as the "case or controversy" requirement of Article III of the Constitution. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-240 (1937).

Although a precise test seems to defy articulation and the question is one of degree, all the circumstances must show that there is a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of declaratory judgment. 312 U.S. 270 (1941), cited by Societe de Conditionment v. Hunter Engineering, 655 F.2d 938 (9th Cir. 1981).

The plaintiff here has just not alleged these things.What it seeks is an advisory legal opinion that if it is found liable under CERCLA, it may seek damages against the defendants. But it has not been found liable under CERCLA.

The EPA, far from demanding plaintiff do anything, has told the plaintiff that it will do nothing about it. Nor has the State of California done anything but make requests of the plaintiff. No agency has commenced any action under CERCLA whatsoever.

The EPA has stated that it will not even place the site on the List, a first move towards anything but a move which in itself still would require the plaintiff to do nothing. There is no need to decide the rights of the parties under CERCLA, at least until plaintiff is ordered to do something.

The parties have debated the applicability of the recent case of D'Imperio v. U.S., 575 F. Supp. 248 [14 ELR 20248] (D.N.J. Dec. 1, 1983), so some mention will be made of it.

There, the EPA sent the plaintiffs a letter saying that there were hazardous substances on the plaintiff's land, that the EPA [14 ELR 20381] had determined that one of the plaintiffs "may be responsible" and that if he failed to undertake an investigation of the site as a first step toward remedial activity "he may be held liable under Section 107 of CERCLA."

Nine months later, in January of 1983, the EPA proposed to place the site on the National Priorities List.

Plaintiffs sued for a declaration that they were not liable for the cost of any cleanup but that the former owners were.

The court there found that the proceedings were at such a preliminary stage and since the EPA had done nothing to force the plaintiffs to clean up the site, that declaratory relief was inappropriate. That's at page 252. For that reason, it refused to hold the former owners liable under CERCLA.

The phrase the plaintiff here has relied on appears at page 253 and reads, "We would view the matter differently if the plaintiffs had already incurred expenses in the cleanup of the site."

Plaintiff maintains that this distinguishes D.'Imperio on the facts because it has incurred cleanup costs.

At a later passage on the same page, however, the court makes clear that even the Government's conducting of a feasibility study on the site is not part of the cleanup.

Plaintiff here has not even gone this far in the costs incurred in its property. It has fenced it off, put up "No Trespassing" signs, hired a guard and conducted chemical analyses of the hazardous substances. At paragraph 36 of the complaint.

Plaintiff has not incurred any costs in cleanup, and this case is not in our view distinguishable from D'Imperio in this regard.

It is, for the same reasons, not ripe for judicial determination until there is a more concrete legal dispute between the parties, and that will not occur until some proceeding under CERCLA is commenced against the plaintiff.

One can sympathize with the plaintiff. It allegedly has hazardous wastes on its property through no fault of its own and wants the responsible parties to remove them.Under the facts alleged, however, it cannot, in our view, state a cause of action under CERCLA.

The pendent state claims asserted against Shell and Dow may not be maintained in this forum without some federal claim also before the Court.

The Ninth Circuit has rejected the principle of pendent party jurisdiction, Ayala v. U.S., 550 F.2d 1196, 1198-1200 (9th Cir. 1977), so these parties may not be retained simply because their presence is helpful to adjudication of the state law claims.

In summary, and for those reasons stated, the motions to dismiss for failure to state a claim of the defendants Cabot, Cabot & Forbes Interim, Shell Oil Company, and Dow Chemical Company are granted.