United States v. Southeastern Pennsylvania Transportation Authority

Nos. 86-1094 et al. (E.D. Pa. July 2, 1986)

The court rules that general allegations of response costs are sufficient to state a claim under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), failure to plead consistency with the National Contingency Plan (NCP) is not relevant to whether a claim exists under CERCLA, the 60-day notice provision in CERCLA § 112 does not apply to § 107 actions, there is no private cause of action for natural resource damages under § 107, and there is no right of action under § 6(e)(2) of the Toxic Substances Control Act. In this case brought by the federal government, a citizens' group, and individuals seeking relief from defendants for alleged polychlorinated biphenyl (PCB) contamination at a railroad yard, the court first holds that plaintiffs have sufficiently alleged that they have incurred response costs under CERCLA. The general costs of removing the contamination alleged by plaintiffs qualify as removal costs under CERCLA § 101(23). The court next holds that plaintiffs' failure to plead consistency with the NCP is not relevant to whether they have stated a claim for response costs under CERCLA, since the NCP applies more to the recovery of damages than to whether there is a valid claim for relief. The court rules that the 60-day notice provision in § 112(a) applies only to actions involving the Superfund under § 111, not to § 107 actions. The court rules that there is no private cause of action for natural resource damages under § 107. Section 107(f) specifically limits recovery of these damages to the federal government and the states. The court also rules that TSCA § 6(e)(2), which gives the Environmental Protection Agency authority to regulate PCBs, does not create a civil action to recover damages.

Having concluded that plaintiffs have stated a valid federal claim under CERCLA, the court grants pendent jurisdiction over plaintiffs' state claims. The court holds that plaintiffs' allegations that defendants fradulently concealed the dangers of their activities at the railroad yard are sufficiently specific to satisfy Federal Rule of Civil Procedure 9(b). The court observes that it is not necessary to plead fraud with a great deal of specificity in a case involving toxic substances. The court defers judgment on whether plaintiffs can recover punitive damages against a state transportation authority, since Pennsylvania law on the issue is unresolved. The court holds that plaintiffs have failed to state a claim for assault and battery, since plaintiffs have not alleged any facts that would show that defendants intended to cause an unpermitted contact or fear of such contact. Defendants intentional use of PCBs does not constitute an intent to injure by force. Finally, the court holds that plaintiffs have failed to state a claim for invasion of privacy because they have alleged no facts that would show that defendants intended to invade plaintiff's privacy.

Counsel for Plaintiffs
Steven J. Englemyer, Ass't U.S. Attorney
3310 U.S. Courthouse, 601 Market St., Independence Mall West, Philadelphia PA 19106
(215) 597-2556

Bonnie A. Sullivan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2992

Counsel for Defendants
Richard A. Kraemer
Margolis, Edelstein, Scherlis, Sarowitz & Kraemer
4th Floor, 1315 Walnut St., Philadelphia PA 19107
(215) 732-3838

David Richman
Pepper, Hamilton & Scheetz
2001 Fidelity Bldg., 123 S. Broad St., Philadelphia PA 19109
(215) 893-3000

[17 ELR 20001]

Scirica, J.:

Memorandum

Currently pending before this court are five separate actions filed against Southeastern Pennsylvania Transportation Authority ("SEPTA"), National Railroad Passenger's Corporation ("AMTRAK") and Consolidated Railroad Corporation ("CONRAIL") (hereinafter defendants), arising out of alleged PCB contamination at the Paoli railroad yard. One suit was filed by the United States, Civil Action No. 86-1094 and asserts claims for relief under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Toxic Substances Control Act ("TSCA") and the Resource Conservation and Recovery Act ("RCRA"). A second suit was filed by the Valley Forge Chapter of Trout Unlimited, Civil Action No. 86-0595 and asserts claims under CERCLA, TSCA, RCRA, the Clean Water Act, and various state environmental statutes. Three suits have been filed by Mabel Brown, Civil Action No. 86-2229, George Albert Burrell, et al., Civil Action No. 86-2235, and Wallace Darryl Cummins, Civil Action No. 86-2669 (hereinafter plaintiffs). These individual plaintiffs all live near the Paoli railyard and seek relief for defendant's conduct at the yard which allegedly resulted in the discharge and release of PCBs, in violation of Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), Section 6(e)(2) of the TSCA, 15 U.S.C. § 2605 and state common law. The individual plaintiffs seek injunctive relief, personal injury and property damages and punitive damages. Defendants have filed motions to dismiss the individual plaintiffs complaints pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure claiming that plaintiffs have failed to state any federal claims upon which relief can be granted which also removes pendent jurisdiction over the remaining state law claims. The legal issues presented by defendants' motion to dismiss and plaintiffs' responses are the same and will be dealt with together.

When reviewing a motion to dismiss, the issue is not whether plaintiffs are likely to prevail in their claims but whether they are entitled to offer proof in support of those claims. The complaint should be dismissed only if it appears certain that no relief could be granted under anyset of facts which could be proved. Jones v. Inmont Corp., 584 F. Supp. 1425, 1427 [14 ELR 20485] (1985); D.P. Enterprises, Inc. v. Bucks Co. Community College, 725 F.2d 943, 944 (3d Cir. 1984). In making this determination, the complaint is construed most favorably to the non-moving party and the allegations and all reasonable inferences are accepted as true. Chambers Development Corp. v. Browning Ferris Industries, 590 F. Supp. 1528, 1534 (1984).

CERCLA is designed to facilitate the prompt clean-up of hazardous material by providing a means of financing both government and private actions and by placing the ultimate financial burden upon those responsible for the danger. City of Philadelphia v. Stepan, 544 F. Supp. 1135, 1142, 1143 [12 ELR 20915] (E.D. Pa. 1982). Section 107 of CERCLA assigns liability for the release of hazardous waste:

Any persons who . . . owned or operated any facility at which such hazardous substances were disposed of . . . shall be liable for any other necessary cost of response incurred by any other person consistent with the National Contingency Plan . . . .

42 U.S.C. § 9607(a).

This section "gives a private party the right to recover its response costs from responsible third parties . . . rather than claiming against the fund." Id. Before initiating a suit under § 107(a)(4)(B), a private party must have incurred some portion of the response cost necessary to clean up the site. U.S. v. Price, 577 F. Supp. 1103, 1110 [13 ELR 20843] (1983).

Defendants contend that plaintiffs have no sufficiently alleged that they have incurred any response cost within the meaning of CERCLA. The word "response" is defined in the Act only as "remove, removal, remedy and remedial action," 42 U.S.C. § 9601(25). Subsection (23) of this section has been defined as follows:

remove and removal to include actions necessary to clean up or remove hazardous substances, to monitor, assess and evaluate a release and to dispose of removal material or to prevent, minimize or mitigate damages to the public or the environment.

Jones, supra at 1429.

Plaintiff Brown alleges in her complaint that:

[17 ELR 20002]

As a result of defendants violations, necessary expenses and costs have been incurred to respond to the contamination through removal and remediation of the contamination at the premises adjacent to and at which plaintiff and the members of the class reside.

Plaintiff Burrell alleges that:

All of the plaintiffs have been tested [medically] and it is believed that each plaintiff has, and will continue to have, toxic levels of PCBs in their bodies. . . .

Plaintiff then asserts:

As a direct and proximate result of the defendants' conduct, plaintiffs will be forced to relocate on both a temporary and permanent basis and will be forced to expend various sums of money in this regard. That as a direct and proximate result of defendants conduct, the soil, ground water, ambient air and other natural resources of the premises adjacent and occupied by the plaintiffs have rendered said premises unfit for habitation in its present condition, warranting the remediation and removal of the contamination . . . .

Finally, plaintiff Burrell contends that:

As a result of defendants violations, necessary expenses and costs have been incurred to respond to the contamination through removal and remediation of the contamination of the premises adjacent to the yard at which plaintiffs reside. . . .

Plaintiff Cummins alleges that:

As a direct and proximate result of the defendants conduct, plaintiffs will be forced to relocate on both a temporary and permanent basis and will be forced to expend various sums of money in this regard. The soil, ground waters, ambient air and other natural resources of the premises and adjacent land occupied by the plaintiffs have rendered said premises unfit for habitation in its present condition, warranting the remediation and removal of the contamination.

Plaintiff Cummins then claims:

As a result of defendants violations, necessary expenses and costs have been incurred to respond to the contamination through removal and remediation of the contamination . . . and as a result of defendants violations, there has been injury to, destruction of, and loss of the natural resources at premises adjacent to and at which plaintiffs reside.

The Jones court, when faced with a motion to dismiss ruled that:

It would be premature for this court to attempt to decide whether plaintiffs are entitled to recover any damages that would meet the CERCLA definition of response cost. In light of the present procedural posture of the case, however, we cannot say as a matter of law, that the plaintiffs are not so entitled. The statutory definitions of "removal" and "remedial actions" are broadly drawn and appear to cover at least some of the elements of damages claimed by these plaintiffs.

Jones, supra at 1430.

Although plaintiffs' allegations may lack specificity, the damages asserted by plaintiffs do qualify as removal costs under Section 9601(23). Since I must construe the complaint in the light most favorable to the plaintiffs and accept all reasonable inferences as true, I find that plaintiffs have alleged response costs and I will not dismiss their CERCLA count on that basis.

II.

Defendants argue that a party seeking to recover response costs under Section 107(a)(4)(B) must show consistency with the National Contingency Plan ("NCP") and since plaintiffs have failed to plead consistency with the NCP, the CERCLA count must be dismissed. The NCP sets overall federal policy for the removal of hazardous substances. The plan details methods for discovering and investigating sites and for remedying releases of hazardous substances. The plan also sets criteria for determining the appropriate extent of response activities. W. H. Frank and T. B. Atkeson, Superfund: Litigation and Cleanup (a BNA special report) at 10 (1985). This court has stated that:

The legislative history of this aspect of CERCLA indicates that the National Contingency Plan was regarded as a means of assuring that responses under the Act would be both cost effective and environmentally sound:

"The plan will contain guidance on cost effectiveness. Such guidelines are intended to insure that alternative remedial options are considered when planning cleanup actions at a particular site. This guidance will also provide both criteria and procedures for a selection of the most cost effective and environmentally sound alternative for remedying the site. This selection will require balancing a variety of factors, including cost and engineering to achieve the health and environmental goals of the legislation. 126 Cong. Rec. Senate 14965 (Daily Edition, Nov. 24, 1980)."

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.

Stepan, supra at 1144, n. 16. See also, Jones, supra at 1430.

Since consistency with the NCP refers more to the recovery of damages than to the existence of a claim for relief under the Act, whether plaintiffs have complied with this requirement is not relevant in a motion to dismiss.¹

III.

Defendants also claim that plaintiff's CERCLA count should be dismissed for failure to comply with the procedure and 60-day notice provision of Section 112 of CERCLA. 42 U.S.C. § 9612(a). The basis of defendants contention is section 112(a) which provides:

All claims which may be asserted against the fund pursuant to Section 9611 of this title shall be presented in the first instance to the owner, . . . if known to the claimant, and to any other person known to the claimant who may be liable under Section 9607 of this title. In any case, where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against said owner, operator, guarantor, or other person or to present the claim to the fund for payment.

Although defendants argue that section 112(a) should apply to section 107, most courts considering this issue have ruled that section 107 and sections 111 and 112 provide causes of action that are distinct and independent. The two actions are no dependent on each other. The limitations applied in sections 111 and 112 are designed to protect the limited availability of federal funds whereas the cause of action in section 107 is directed to liability by the owner or operator of the site or responsible third parties. Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 288 [15 ELR 20173] (1984).

The first sentence of section 112(a) expressly provides that "all claims which may be asserted against the fund (the superfund) pursuant to section 9611 of this title" . . . 42 U.S.C. § 9612(a). It is clear, therefore, that the notice provision applies only to actions in which a claim is sought to be made against the fund; it does not apply when a CERCLA case is merely brought against a responsible party [under section 107].

State of New York v. General Electric Co., 592 F. Supp. 291, 300 [14 ELR 20719] (1984). This court has also ruled that section 107 is independent of section 112 stating that:

Liability is imposed [under section 107] "notwithstanding any other provision or rule of law" . . . [and concluded] on the basis of this language that "section 107(a) was meant [17 ELR 20003] to stand by itself; liability under it can be determined without the numerous inquiries into [section 111 limitations on superfund expenditures] . . ."

U.S. v. Wade, 577 F. Supp. 1326, 1336 [14 ELR 20096] (E.D. Pa. 1983). Since section 107 and 112 provide causes of action that are distinct and independent, plaintiffs need not comply with section 112 notice requirements to state a valid claim under section 107.²

IV.

Defendant next contends that plaintiffs cannot recover for damages to natural resources under section 107 of CERCLA. Section 107(a)(4)(c) of CERCLA provides that responsible parties may be liable for "injury to, destruction of, or loss of natural resources, including the reasonable cost of assessing such injury, destruction or loss resulting from such a release." 42 U.S.C. § 9607(a)(4)(C). Subsection (f) of that section expressly provides that

In the case of an injury to, destruction of, or loss of natural resources, under sub-paragraph (c) of subsection (a) of this section, liability shall be to the United States government and to any state for natural resources within the state, or belonging to, managed by, controlled by, or appertaining to such state: . . . the president, or authorized representatives of any state, shall act on behalf of the public as trustees of such natural resources to recover for such damages. Sums recovered shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the federal government or the state government, but the measure of such damages shall not be limited by the sums which can be used to restore or replace such resources . . . .

42 U.S.C. § 9607(f).

Defendants contend there is no private right of recovery for damages to natural resources under section 107 and that part of plaintiffs' complaint should be dismissed. Plaintiffs counter that defendant's construction is unduly rigid and that subsection (a) should be read independently of subsection (f).

Plaintiffs interpretation of the act is contrary to the clear language of the statute. Subsection (f) recites that when there is an injury to natural resources "under sub-paragraph (c) of subsection (a) of this section, liability shall be to the United States government and any state . . . ." 42 U.S.C. § 9607(f). The limitation on liability refers specifically to subsection (a) and allows the right of recovery under that section only to the government. Plaintiffs' interpretation allowing private rights of action for damages to natural resources is directly contrary to subsection (f) which limits recovery for such damages and defines how government should use the money recovered. It is axiomatic in statutory construction to give effect, if possible, to every clause and word of a statute and not render certain provisions superfluous or insignificant. Bell v. U.S., 754 F.2d 490, 491 (3d Cir. 1985); Woodfork v. Marine Cooks and Stewards Union, 642 F.2d 966, 971 (5th Cir. 1981). Given two possible constructions of a statute, I must reject plaintiffs' interpretation which renders section (f) insignificant, superfluous or meaningless and adopt defendants' interpretation which gives effect to every section of the Act. Therefore, I find that there is no private cause of action for damage to natural resources under section 107 and that part of plaintiffs' complaint is dismissed.

Therefore, based on the foregoing analysis, I cannot rule as a matter of law that plaintiffs' CERCLA claims should be dismissed in their entirety.³

Defendants also argue that plaintiffs fail to state a claim under section 6(e)(2) of the TSCA, 15 U.S.C. § 2605(e), under which the EPA administrator promulgates regulations on PCBs. This section grants authority to the administrator to regulate dangerous chemical substances but does not create a civil action to recover damages. Johnson v. Koppers Company, Inc. 524 F. Supp. 1182, 1189 (1981). To the extent plaintiff relies on the TSCA to establish subject matter jurisdiction or a new and independent cause of action, plaintiff's claims under 15 U.S.C. § 2605 are dismissed for failure to state claims upon which relief can be granted.⁴

VI.

A federal court has discretion to entertain the state law counts arising out of a common nucleus of operative facts on which a federal cause of action is based. Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir. 1982). Defendants do not challenge plaintiffs' state claims on the basis that they have been improperly raised in this matter or that the state claims predominate nor that the issues are dissimilar. Since plaintiffs have stated a valid federal claim under CERCLA, I will grant pendent jurisdiction over plaintiffs' state claims even though jurisdiction would not otherwise be present.

VII.

Defendants also contend that plaintiffs have not been sufficiently detailed in their allegations of fraudulent concealment or non-disclosure. The Federal Rules of Civil Procedure require

In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge and other conditions of mind of a person may be averred generally.

Federal Rules of Civil Procedure 9(b). This Rule must be balanced and harmonized with Rule 8(a) which requires "a short and plain statement of the claim" and Rule 8(f) which requires "all pleadings shall be construed to do substantial justice." In a case involving toxic substances, it is not necessary to plead fraud with a great deal of specificity. All that is required is a short and plain statement of the basis for the suit. In the Matter of Johns-Manville Asbestos Cases, 511 F. Supp. 1229, 1231, 1232 (1981). In this case, plaintiff Brown alleges that:

Defendants have fraudulently concealed the dangers and risk involved in the activities at the yard in that they (a) knew or should have known that plaintiffs and members of the class are exposed to serious risk of PCBs; (b) knew that run-off containing PCBs was entering the residence of plaintiff and the members of the class and properties adjacent to said residences, the environment, the community at large; and (c) intentionally failed to issue warnings regarding the contamination.

Plaintiffs Burrell and Cummins allege:

Defendants have fraudulently concealed the dangers and risk involved in the activities at the yard in that they: (a) knew or should have known that plaintiffs were exposed to serious risk of PCBs; (b) knew that since 1979 run-off containing PCBs was entering the residences of plaintiffs and the communities at large; and (c) intentionally failed to warn the plaintiffs' of contamination.

Given the standard I must apply on a motion to dismiss, I find as a matter of law that plaintiffs' complaints adequately meet federal pleading requirements and are sufficiently specific to satisfy Rule 9(b).

[17 ELR 20004]

VIII.

Defendant SEPTA argues that in Pennsylvania plaintiffs cannot recover punitive damages against SEPTA. Defendants base their argument on the recently decided case of Feingold v. SEPTA. 488 A.2d 284 (Pa. Super. 1985), where the Pennsylvania Superior Court ruled that punitive damages are generally not recoverable against a municipality or state agency. Id. at 291. However, this case has been appealed to the Pennsylvania Supreme Court which heard oral argument on this issue in May 1986. Since state law on this question is unresolved, I will defer judgment at this time.

IX.

Plaintiffs Burrell and Cummins have filed claims for assault and battery against defendants. Defendants assert that there is no factual basis in the complaint for inferring that defendants intentionally attempted or succeeded in causing by force, injury to plaintiffs.

Under Pennsylvania law, no assault or battery is committed where there is no intention to cause harmful or offensive contact and no intent to cause fear of such contact. Belcher v. U.S., 511 F. Supp. 476, 483 (E.D. Pa. 1981).

Any act of such a nature as to excite an apprehension of a battey may constitute an assault. . . . It usually is held that the defendant's act must amount to an offer to use force. . . .

Prosser and Keeton on The Law of Torts (1984); p. 43, 44.

. . . in order to be liable for battery, the defendant must have done some positive and affirmative act; . . . The act must cause, and must be intended to cause, an unpermitted contact. Mere negligence, or even recklessness, which creates only a risk that the contact will result, may afford a distinct cause of action in itself, but under modern usage of the term it is not enough for battery.

Id. at 41.

Plaintiffs Burrell and Cummins allege in their complaints:

As a result of defendants' intentional conduct in the use, storage and disposal of PCBs, there occurred as a causal and intended consequence, repeated and continuous invasion of the plaintiffs' interests and freedom from apprehension of harmful or offensive conduct with their persons. As a result of defendants' intentional conduct in the use, storage and disposal of PCBs, there occurred as a causal and intended consequence, repeated and continuous invasion of the plaintiffs' interests and freedom from intentional and unpermitted contacts with their person. Said battery led to harmful physical contacts as well as harmful mental disturbances complained of above.

Plaintiff does not allege any facts, which if proven, would show that defendant intended to cause an unpermitted contact or fear of such contact. Defendants intentional conduct in the use of PCBs does not constitute an intent to injure plaintiffs by force. Plaintiffs have failed to state a cause of action for assault and battery and that portion of plaintiffs' complaint is dismissed.

Plaintiffs Burrell and Cummins have filed claims for invasion of privacy against defendant. Defendants contend that plaintiffs failed to state a claim for invasion of privacy because they do not allege that defendants intended to invade plaintiffs' privacy or private affairs.

Section 652(B) of the Second Restatement of Torts provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of this privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652(B) (1977). Under this section

The invasion may be (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant's senses to oversee or overhear the plaintiff's private affairs, or (3) some other form of investigation or examination into plaintiff's private concerns.

Harris v. Easton Publishing, 483A.2d 1377, 1383 (1984). Plaintiffs allege that:

The defendants herein have intentionally intruded upon the seclusion of the plaintiffs in that they (a) knowingly and intentionally permitted the improper disposal of PCB at the yard . . . and (c) the invasion of privacy by the PCB contamination is highly offensive to the plaintiffs herein.

Plaintiffs have alleged no facts that would show that defendants intentionally intruded into plaintiffs' private concerns. Accordingly, this portion of plaintiffs' complaint is dismissed.

Given the standard I must apply to a motion to dismiss, I cannot rule as a matter of law that plaintiffs' claim fails to assert a cause of action on which relief can be granted.

1. Even assuming that consistency with the NCP is relevant to whether a claim exists under CERCLA; see Pinole Point Properties v. Bethlehem Steel Corp., 596 F. Supp. 283, 290 [15 ELR 20173] (1984), the question of consistency turns on the cost efficiency and environmental soundness of the clean up action. This determination could not be made on the basis of pleadings but would depend on evidence developed at trial. Id., Stepan, supra at 1444; Homart Development Co. v. Bethlehem Steel, 22 ERC 1357, 1368 [14 ELR 20718] (1984).

2. Even if this notice requirement was applied to section 107 in this case; see Bulk Distribution Center v. Monsanto Co., 589 F. Supp. 1437, 1448 [15 ELR 20151] (1984), that would not cause the dismissal of plaintiff's CERCLA count. The Third Circuit has adopted a pragmatic approach to such notice requirements and will not dismiss prematurely filed complaints since they can be refiled after expiration of the notice period. Applying this approach to a situation similar to the one presented here, the judge in City of Philadelphia v. Stepan Chemical Co., noted that "In Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 [10 ELR 20235] (3d Cir. 1980), the Court of Appeals adopted a 'pragmatic approach' to the sixty day notice provision contained in section 505(b) of the Clean Water Act, it determined that interpreting non-compliance to divest the court of jurisdiction would simply result in the dismissal and refiling of premature suits, a result it characterized as 'excessively formalistic.' Applying this reasoning, even if a timely claim was not made in this case, it is highly unlikely that this fact alone would require dismissal of the city's CERCLA claim." (citations omitted) Stepan, supra at 1144 n. 14.

3. Defendants make other arguments relating to the scope of damages, the right to injunctive relief, and jury trials under CERCLA. Plaintiffs recognize they have no right to a jury or injunctive relief under CERCLA, but claim that injunctive relief and a jury trial are requested under other causes of action. These questions, as well as what is the proper scope of damages recoverable under the Act, are not relevant to whether a valid claim for relief has been alleged and therefore, need not be considered at this point.

4. The fact that there is no right of action under 15 U.S.C. § 2605(e) does not preclude plaintiffs from using TSCA regulations covering use of PCBs to establish a standard of care to which plaintiffs may argue that defendants must adhere. The court makes no determination as to whether defendants have or have not violated the regulations established by the administrator of the EPA for the use, handling and disposal of PCBs. This is a fact question which cannot be decided on a motion to dismiss.