Homart Development Co. v. Bethlehem Steel Corp.

No. C84-2579 WWS (N.D. Cal. July 12, 1984)

The court rules that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes private parties to recover response costs from responsible parties without Environmental Protection Agency (EPA) approval of the response action. Ruling from the bench at the close of oral argument, the court first notes that CERCLA is a remedial statute that must be construed liberally. The court rules that the § 107 cost recovery process is unconnected to the claims procedure established in §§ 111 and 112. It next rules that the § 107 requirement that private response actions be "consistent" with the national contingency plan (NCP) does not mandate prior EPA approval of the response action. Congress expressly provided for such approval in other sections of the Act, and the fact that it omitted such language from § 107 is significant. The court rejects defendant's argument that CERCLA gives EPA primary jurisdiction over response actions as unsupported by the language of the statute and the procedures it sets up. Nor is prior EPA approval required by the policies underlying CERCLA. The court notes that the question of whether the costs incurred in this case were consistent with the NCP is a factual one to be resolved at trial. Finally, the court dismisses a claim based on California Civil Code § 2821, since the section does not provide a private right of action, and dismisses another claim under nuisance law, since there is no ongoing use of defendant's land.

The full text of the oral argument and ruling is available from ELR (39 pp. $5.50, ELR Order No. C-1328).

Counsel for Plaintiff
Terry J. Houlihan, Patricia L. Shanks, John D. Edgcomb
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Ctr., San Francisco CA 94111
(415) 393-2000

Counsel for Defendant
Gary H. Anderson, Nicole Goldberg
Pillsbury, Madison & Sutro
P.O. Box 7880, San Francisco CA 94120
(415) 983-1000

Schwarzer, J. - from the bench

[14 ELR 20718]

Schwarzer, J.:

Defendant's Motion to Dismiss

The Court: Thank you very much.

I must commend you on your mastery of the subject. I think it is extraordinary. It is very technical, I think both sides brought excellent briefs, and it was a pleasure to have them and to hear your arguments.

I see no reason why I should not rule on this matter now. I don't think there is any useful purpose to be served in expending more paper on this subject than has already been expended.

Although I think it is a difficult question to meet, to me the answer seems fairly clear. To begin with, as I have said, I don't think there can be any serious question but section 9607(a) or (b) creates a private cause of action to recover the cost of response incurred by any private party, that is what it says.

So the only real question is whether the Act imposes some limitation on the right to recovery under § 9607(a) or (b), such as prior EPA approval, or something along those lines.

Now, in interpreting the statute, I think one must start out by recognizing that it is a remedial statute, intended to respond to an immediate and serious national concern which is epitomized by the Love Canal episode.

So in my view, at least, the statute must be liberally construed to aid in accomplishing that purpose.

The Act seems to provide a dual approach to the cleaning up of hazardous wastes. At first, it creates a fund and provides for the payment of claims for costs incurred in cleaning up out of that fund. But because it was obviously recognized that the resources available through the fund or otherwise through the federal government would be limited, the Act also incorporates a separate and independent approach by providing under section 9607 for liability on the part of persons responsible for hazardous waste sites for necessary costs of response, consistent with the national contingency plan.

The fact that section 9607 in its opening language contains the provision that "notwithstanding any other provision of law," that language clearly shows that this is a separate and independent remedy, which is not tied in with §§ 9611 and 9612, or any of the other provisions in the Act. So it is clearly unrelated to the claims procedure, which has its own independent procedural provisions in section 9611 and 9612.

That brings me to what I indicated at the beginning was the core issue, and that is, what did Congress mean when it allowed for the recovery of necessary costs of response consistent with the national contingency plan?

Section 9605 calls for the preparation of a national contingency plan, and although it deals with government actions relating to response, it goes beyond that in calling for a plan that would deal with methods of investigating, evaluating, and determining the appropriate extent of cleanup, and achieving cost effectiveness. So it is a very broad sweep that § 9605 seems to take.

Neither that provision of the statute nor anything else suggests to me that consistency with the national conntingency plan is equivalent to government approval of the incurring of particular costs at a particular site. That approval requirement is indeed found and specifically spelled out in section 9611(a)(2) in connection with fund claims. The fact that Congress put it there and had not put it in section 9607 is significant.

The national contingency plan itself, which implements the statute and reflects the administrative interpretation of it, seems to contemplate cleanup by private parties, who will not be reimbursed by the fund, and although I understand the defendant's argument to be that taking the various sections that that reflects a limitation on the right of recovery, it seems to me that is a highly stilted and artificial argument, which I don't think reflects the intention of Congress and the EPA as otherwise evidenced.

Now, it seems to me that, in substance, the defendant's argument boils down to the claim that, under the statute, the EPA has primary jurisdiction over the cleanup efforts and over the determination of whether and what cleanup costs should be incurred.

But as I have indicated in the course of all argument, I find nothing in the statute that vests primary jurisdiction in the EPA over allnational cleanup effort of hazardous waste, and it would be extraordinary for Congress to place that kind of inhibition on a right to recover costs, such as § 9607 gives, without making it clear, which would have been easy for Congress to do had it intended to do so. It has done so in many other statutes.

Moreover, as I indicated, even if Congress intended for the EPA to have primary jurisdiction, there is nothing that would confine or that provides a procedure for a party that has a hazardous waste problem and wants to get it cleaned up to seek and obtain the approval of the EPA. Nor is there anything in the statute that vests in the EPA the power to grant approval to cleanup by private parties as a condition to an action for recovery.

And finally, as Mr. Houlihan points out, there does not really seem to be any compelling or any policy reason at all why cleanup, which has been considered to be a matter of some national priority, whether the site is on the priority list or not, should be made subject to EPA approval.

It is true, or course, that cleanup could be undertaken without the EPA approval, but § 9607 would not be operating with respect to that kind of approval, and there does not seem to be any policy reason why the right to recover should be circumscribed in that fashion.

So in the light of those considerations, I conclude that I cannot find, at this point, that plaintiff has not alleged a state of facts under the statute under which some right of relief may exist, and therefore the Motion to Dismiss must be denied.

Of course, that leaves open the question of whether the costs incurred here were consistent with the national contingency plan, but that will be a triable issue, presumably, because I think that a claim for relief has been stated.

I deny as well the Motion to Dismiss the Claim for Declaratory Relief, which would be appropriate under the circumstances.

With respect to the two state claims that the defendant has moved to dismiss, I am in agreement with those arguments.

[14 ELR 20719]

I think the claim based on Civil Code 3281 fails to state a claim on which relief can be granted, because that section only provides a damage remedy where somebody has a right to relief. It does not provide a cause of action. It may be that there are causes of action for negligence under state statutes, but those claims would have to stand or fall on the statute and not on the fact that 3281 may give you a damage remedy, if you can find a viable claim under some other statute.

With respect to the private nuisance claim, the sixth cause of action, while apparently this is a novel question, it is either novel, or it isn't novel, it is a novel question on which there does not seem to be any law, but it does make sense for me to say that the purpose of the nuisance remedy is to prevent somebody from using their land in such a way to interfere with people outside of the land, and once that use has stopped, as it has here, the fact that there is some remnants and artifacts that are left behind does not seem to me to make it appropriate to invoke nuisance as a remedy.

So the Motion to Dismiss the fifth and sixth claims will be granted.