United States v. Wade

No. 79-1426 (E.D. Pa. February 2, 1984)

The court denies defendant generators' motion to dismiss the Commonwealth of Pennsylvania's complaint in intervention seeking response cost and natural resources damage recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court rules that the commonwealth's complaint need not be dismissed solely because Pennsylvania allegedly has already received more money in settlements than it has spent at the site, for reasons relied upon in a decision rejecting the same argument as applied to the United States, 14 ELR 20096. The court denies defendants' motion to dismiss intervenor's natural resources damage recovery claims for failure to comply with CERCLA §§ 111(h) and (i), ruling that compliance with those provisions is not a prerequisite to filing a complaint. The court next rules that § 107(f), which bars claims for natural resources damages that, along with the releases causing them, occurred entirely prior to enactment of CERCLA, does not bar intervenor's claim simply because disposal of defendants' wastes at the site was completed before that date. Intervenor's complaint alleges that releases from the site causing natural resources damage continue. However, the court does dismiss intervenor's public nuisance complaint as it applies to defendant generators. The court next rejects defendants' claim that the case is not ripe for declaratory adjudication of their liability. Finally, the court rules that intervenor complied with the December 11, 1983 deadline for cases of this type, both by filing its motion to intervene prior to that date, and by filing its complaint on December 12, 1983, a Monday.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20436, 14 ELR 20437, 14 ELR 20439, 14 ELR 20440, and 14 ELR 20441 — Ed.]

Counsel are listed at 14 ELR 20096.

[14 ELR 20435]

Newcomer, J.:

Memorandum

Before the Court is the generator defendants' motion to dismiss the complaint in intervention of the Commonwealth of Pennsylvania. For reasons discussed below the motion is granted in part and denied in part.

Counts I and II of the Commonwealth's complaint are based on § 107(a) of CERCLA, 42 U.S.C. § 9607(a).In essence the generator defendants advance one of the arguments advanced in their motion for summary judgment against the United States: the Commonwealth has received more money in settlement than it has spent in cleaning up the site. For reasons previously stated I reject the argument.¹ See also State [ex rel. Brown] v. Georgeoff, 562 F. Supp. 1300 [13 ELR 20457] (N.D. Ohio 1983).

Count II of the complaint seeks recovery for damage to natural resources. The generator defendants find fault with this count on the basis of the § 111(h) provision requiring that damages for injury to natural resources be assessed by federal officials designated by the President under the national contingency plan and the § 111(i) provision prohibiting the use of funds under the Act for restoration of natural resources until a plan for the use of such funds has been promulgated by affected federal agencies and the governors of the affected states.

The generator defendants argue that the term "fund" is used generically in these provisions rather than in reference to the Superfund. Assuming the defendants are correct with respect to this assertion,² nothing in the language of the statute suggests that [14 ELR 20436] § 111(h) and (i) must be complied with prior to the filing of a complaint. Instead, the sections pertain to assessment of damages and use of funds for restoration or replacement of natural resources all of which occurs at a much later stage. In fact, I am unsure how the state could develop a meaningful plan or hold meaningful hearings before knowing the amount of money available to accomplish the plan. I will therefore deny the motion to dismiss insofar as it is based on a failure to comply with § 111. See United States v. Reilly Tar & Chemical, 546 F. Supp. 1100, 1118-1120 [12 ELR 20954] (D. Minn. 1982).

The generator defendants also argue that § 107(f) prohibits recovery by the Commonwealth on its Count II claim. that section provides, in relevant part, as follows:

There shall be no recovery . . . [for damage to natural resources] where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980.

42 U.S.C. § 9607(f). The defendants contend that because they arranged for transportation of their wastes to the Wade site in the mid-1970's this provision bars recovery for damage to natural resources. Apparently the generator defendants now argue, contrary to their previous position, that the mere act of disposing of wastes constitutes a release.As I commented previously, the act of disposal, without more, does not necessarily constitute a release. Thus, although all waste generated by these defendants presently at the site was placed there prior to December 11, 1980, releases of such waste may well be occurring today. This is in fact what the complaint alleges at paragraph 47. Thus, § 107(f) does not dictate dismissal of the Commonwealth's complaint. The extent to which § 107(f) may limit the defendants' liability must be resolved in future proceedings.

The generator defendants next contend that Count III, in which the Commonwealth alleges that the Wade site constitutes a public nuisance, must be dismissed. The Commonwealth responds that the Count is not directed at the generator defendants. I take this position to be a concession on the part of the Commonwealth; however, because I see nothing in the complaint so limiting Count III, I will grant the generator defendants' motions to dismiss Count III as to them.³

Count IV of the complaint seeks a declaratory judgment that the generator defendants are liable for the cost of cleaning up the Wade site. The generator defendants seek dismissal of this Count on the grounds that no "actual controversy" exists. For the reasons stated in Georgeoff, I cannot agree. 562 F. Supp. at 1316.

Finally, the generator defendants argue that the entire complaint is barred by the statute of limitations. For purposes of this case, the limitations period expired on December 11, 1983. 42 U.S.C. § 9612(d). The Commonwealth filed its motion to intervene, with complaint attached, on October 26, 1983. The generator defendants do not claim they were not served with copies of the motion. The complaint itself was filed on December 12, 1983.

The defendants' contention is meritless for two reasons. First, the filing by the Commonwealth of its motion to intervene tolled the statute of limitations. Braxton v. Virginia Folding Box, 72 F.R.D. 124 (E.D. Va. 1976); Jack v. Travellers Insurance, 22 F.R.D. 318 (E.D. Mich. 1958). Second, because the statutory deadline, December 11, 1983, fell on a Sunday, the Commonwealth had until Monday, December 12, to file its complaint. F.R.C.P. 6(a).

Order

AND NOW, this 2nd day of February, 1984, upon consideration of the generator defendants' motion to dismiss the complaint of the Commonwealth of Pennsylvania, it is hereby Ordered that

1. The motion is GRANTED as to Count III of the Complaint;

2. The motion is DENIED as to Counts I, II, and IV of the Complaint.

AND IT IS SO ORDERED.

1. As previously stated the record is simply unclear as to the intent of the parties with respect to the settlement fund. The defendants' brief highlights the confusion: they previously argued the United States had received $1.9 million in settlement nut now contend that roughly $1.7 million of that fund was received by the Commonwealth. Both contentions cannot be true.

2. The matter is not free from doubt. Granted, in the cited provisions the word "fund" is not capitalized as it is elsewhere; however, the provisions appear in a section titled "Uses of Fund" that deals with authorized uses and limitations on use of Superfund money.

3. This is the only state law claim asserted against these defendants so I need not reach the issue of whether this case is a proper one for the exercise of pendent jurisdiction.