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19 ELR 20256 | Environmental Law Reporter | copyright © 1989 | All rights reserved Coburn v. Sun Chemical Corp.No. 88-0120 (E.D. Pa. November 9, 1988)The court holds that costs of medical screening and future medical monitoring are not response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and plaintiffs cannot maintain a citizen suit under the Resource Conservation and Recovery Act (RCRA) against two former owners of a hazardous waste site. The court first rules that medical screening and future medical monitoring costs are not "necessary costs of response" under CERCLA § 107(a). CERCLA does not define the phrase "necessary costs of response," and "response" is defined only as "remove, removal, remedy and remedial action." The statutory definitions of each of these terms do not contain any references to medical expenses and clearly contemplate only the cleanup of toxic substances. CERCLA's medical care provisions, which created the Agency for Toxic Substances and Disease Registry in § 104(i) to provide medical care and testing to exposed individuals, are separate from the liability provisions in § 107. That Congress considered including medical monitoring costs in CERCLA but deleted it from the final bill supports the court's conclusion. The court holds that plaintiffs' citizen suit under RCRA § 7002(a)(1)(A) against two former owners of the site must be dismissed, since any violations would necessarily be wholly past violations. Although one of these defendants may be the owner of drums left at the site, RCRA requires only the owner or operator of the facility that stores the drums to have a permit. Turning to the claims against the current owner, the court notes that plaintiffs cannot simultaneously bring claims alleging that defendant operated a hazardous waste facility without a permit in violation of RCRA § 3005(a) and operated an "open dump," since RCRA's definition of open dump excludes hazardous waste disposal facilities. Plaintiffs cannot proceed under the imminent hazard provision in RCRA § 7003(a), since only the Administrator of the Environmental Protection Agency can file suit under this provision. The court holds that plaintiffs' claim under RCRA § 7002(a)(1)(B) is not barred by EPA's consent agreement and order under CERCLA § 106 and a state agency's order requiring a defendant to develop a remediation plan, since these orders deal with underground contamination and plaintiffs seek surface cleanup of the hazardous wastes. Counsel for Plaintiff Counsel for Defendant Susanna E. Lachs, Judah I. Labovitz Weiner, J. This action was brought by plaintiffs, a purported class consisting of "all persons who were exposed to well water contaminated with TCE and other hazardous substances released from the 120 Mill Street property while residing or working in Dublin, Pennsylvania, excepting defendants' employees, servants, or workers to the extent their exposure is solely work related" against defendants Sun Chemical Corp., a/k/a Sequa Corp. ("Sequa"), Athlone Industries, Inc. ("Athlone") and John H. Thompson ("Thompson"). In their complaint, plaintiffs allege violations of two federal environmental laws: (1) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq. and (2) the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq. Plaintiffs also allege various state claims, including strict liability, negligence and nuisance. The [19 ELR 20257] plaintiffs seek declaratory and injunctive relief as well as compensatory and exemplary damages. Sequa has filed a motion to dismiss the CERCLA and RCRA counts pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and to dismiss the pendent state law claims pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Athlone and Thompson have joined in Sequa's motion to dismiss the CERCLA count and the request to dismiss the pendent state law claims. Each defendant has individually filed motions to dismiss the RCRA count pursuant to Fed. R. Civ. P. 12(b)(6).1 For purposes of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, we must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to plaintiffs. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). We may not dismiss the complaint unless the plaintiffs can prove no set of facts which would entitle them to relief. Id. In Count One of their complaint, plaintiffs allege that defendants are liable to plaintiffs under Section 107(a)(4)(B) of CERCLA, 42 U.S.C. § 9607(A)(4)(B) for necessary response costs incurred by plaintiffs as a result of defendants' activities. Specifically, in paragraph 49 of their complaint, plaintiffs allege that "[r]esponse costs incurred by plaintiffs include, but are not limited to, expenses related to medical screening, monitoring of their water, and the taking of such actions as were necessary to prevent, minimize or mitigate damage to their health or welfare." Plaintiffs further allege, in paragraph 59 of their complaint that "[p]laintiffs individual response costs, including, but not limited to, costs of future medical monitoring are in excess of Seventy Five Thousand ($ 75,000.00) dollars." Defendants contend, however, that costs of medical screening and/or future medical monitoring are not "necessary costs of response" as that term is defined in CERCLA.2 CERCLA was enacted by Congress in 1980 as a legislative response to the growing problem of toxic wastes. The primary focus of CERCLA is facilitating the prompt cleanup of hazardous waste sites by placing the ultimate financial burden on those responsible for creating the harmful conditions.3 See Exxon Corp. v. Hunt, 475 U.S. 355 [16 ELR 20396] (1986); New York v. Shore Realty Corp., 759 F.2d 1032, 1040 [15 ELR 20358] (2d Cir. 1985); City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1142-43 [12 ELR 20915] (E.D. Pa. 1982). In addition, Section 9607(a)(4)(B) of CERCLA permits private parties who clean up waste sites to be reimbursed for their response costs. Section 9607(a)(4)(B), the liability section of CERCLA, provides as follows: (4) Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for — (B) Any other necessary costs of response incurred by any other person consistent with the National Contingency Plan; . . . Our task then is to determine whether costs of medical screening and/or future medical monitoring constitute "necessary costs of response" under CERCLA. It is well settled that "the starting point for interpreting a statute is the language of the statute itself." Gwaltney of Smithfield v. Chesapeake Bay Foundation, 56 U.S.L.W. 4017 [18 ELR 20142] (1987) quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 107, 108 (1980). Unfortunately, the phrase "necessary costs of response" is nowhere defined in CERCLA, and the word "response" is defined only as "remove, removal, remedy and remedial action." 42 U.S.C. § 9601(25). The term "remove" means the "clean up or removal of released hazardous substances . . . such actions as may be necessary to monitor, assess, and evaluate the release or threat of release . . . or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare . . . which may otherwise result from a release or threat of release." 42 U.S.C. § 9601(23). Subsection (23) lists as specific examples security fencing, alternative water supplies, temporary evacuation and housing, and other emergency assistance. The term "remedy" refers to those "actions consistent with permanent remedy taken instead of or in addition to removal actions . . . to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment." 42 U.S.C. § 9601(24). Subsection (24) lists as specific examples containment actions, treatment or incineration, provision of alternate water supplies, and any monitoring reasonably required to assure that the actions taken protect the public and the environment. Because CERCLA does not define the phrase "necessary costs of response" and defines the term "response" in a most indirect and ambiguous manner, courts have had considerable difficulty in applying Section 9607(a). Indeed, the United States Court of Appeals for the Third Circuit has recently commented that "CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage. Problems of interpretation have arisen from the Act's use of inadequately defined terms, a difficulty particularly apparent in the response costs area." Artesian Water Co. v. New Castle County, 851 F.2d 643, 648 [18 ELR 21012] (3d Cir. 1988). The legislative history of CERCLA offers little guidance into the definition of "necessary costs of response." As noted by the Court of Appeals for the Third Circuit, "[t]he circuitous language of CERCLA reflects the statute's checkered legislative formulation. After a number of predecessor bills failed to muster sufficient support, a group of senators submitted the Stafford-Randolph compromise bill to a lame duck Congress in the waning days of the Carter Administration. That bill, however, did not receive careful study by a committee, and voting on the floor was controlled by a procedure that permitted no amendments, other than one previously cleared. The legislative history, therefore, furnishes at best a sparse and unreliable guide to the statute's meaning." Artesian Water Co., supra, at 648. Basically, the leading Senate Superfund Bill, S.1480, provided that responsible parties shall be liable for "all damages for economic loss or loss due to personal injury . . . or loss of natural resources . . . including . . . all out-of-pocket medical expenses. . . ." S.1480, 96th Cong., 2d Sess. §§ 4(a)(2)(A)-(G). Similarly, House Bill H.R. 7020 included a liability section encompassing "all damages for personal injury, injury to real or personal property, and economic loss . . ." H.R. 7020, 96th Cong., 2d Sess. § 3071(b). However, the compromise bill which became CERCLA differed markedly from the original Senate Superfund Bill, S.1480. Indeed, the Chairman of the Senate Environment and Public Works Committee, Senator Randolph, noted that the compromise bill contained "many concessions from the original bill reported last summer" and that "[w]e have deleted the Federal cause of action for medical expenses or income loss," 126 Cong. Rec. S.14964 (daily ed. Nov. 24, 1980). To date, no Federal Court of Appeals has had occasion to decide whether costs of medical screening and/or future medical [19 ELR 20258] monitoring constitute response costs under CERCLA. The Supreme Court, after reviewing the legislative history of CERCLA, determined that "Superfund money [is not] available to compensate private parties for economic harms that result from discharge of hazardous substances." Exxon Corp. v. Hunt, 475 U.S. 355, 375 [16 ELR 20396] (1986). The United States Court of Appeals for the Third Circuit, after reviewing the legislative history, has indicated that it does not believe that reimbursement for property or income loss is possible under CERCLA. Artesian Water Co. v. New Castle County, 851 F.2d 643, 648-49 [18 ELR 21012] (3d Cir. 1988). See also Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 1285 (D. Del. 1985) ("Congress in enacting CERCLA clearly manifested an intent not to provide compensation for economic losses or for personal injury resulting from the release of hazardous substances"). There is a split of authority among the district courts which have considered the question of whether costs of medical screening and/or future medical monitoring constitute responsive costs under CERCLA. On the one hand are the cases which have concluded that medical detection and monitoring costs are not "necessary costs of response" under CERCLA. The most prominent of these cases is Chaplin v. Exxon Corp., 25 ERC 2009 (S.D. Tex. 1986). In finding that medical detection and monitoring costs are not "necessary costs of response" under CERCLA, the Chaplin court observed that the legislative history [of CERCLA] "reveals the specific omission of such private rights from the final version." Chaplin at 2011. The Chaplin court found that although both the aforementioned House bill and the Senate bill that preceded CERCLA contained language imposing liability for personal injury as well as medical expenses and economic loss, these specific liability provisions were deleted from the final compromise bill which became CERCLA. The Chaplin court went on to quote Senator Randolph's statement that "[w]e have deleted the federal cause of action for medical expenses or property or income loss." Id. (quoting 126 Cong. Rec. S14964 (daily ed. Nov. 24, 1980)). The Chaplin court further observed that although CERCLA does contain medical care provisions, these provisions are separate from the liability provisions of Section 9607. Specifically, the court noted that, as part of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Congress created the Agency for Toxic Substances and Disease Registry in Section 104(i) of CERCLA to provide medical care and testing to exposed individuals including "tissue sampling chromosomal testing, epidemiological studies, or any other assistance appropriate under the circumstances." 42 U.S.C. § 9604(i)(4). The Chaplin court concluded that "[s]uch medical testing costs clearly differ from either the response costs or clean up costs allowed in Section 9607." Chaplin at 2012. In striking claims under CERCLA for medical costs, property loss and post-relocation expenses, the United States District Court for the Northern District of California in Wehner v. Syntex Corp., Docket No. C-85-20383 SW [18 ELR 20469] (N.D. Cal. December 21, 1987) reviewed the legislative history and observed that: Legislative history reveals that Congress contemplated including medical monitoring under CERCLA. See S. Rep. No. 848, 96th Cong., 2d Sess. 54, reprinted in 1 Legis. Hist. 308, 360-61, S. 1480. However, the act as passed does not include any language reflecting Congress' earlier intentions. The plain language of CERCLA only provides for the cleanup of toxic substances from the environment. On the other hand, are the cases beginning with Jones v. Inmont Corp., 584 F. Supp. 1425 [14 ELR 20485] (S.D. Ohio 1984) which have denied motions to dismiss claims seeking to recover medical detection and monitoring costs under CERCLA. In Jones, the plaintiffs' complaint alleged, inter alia, that certain plaintiffs have incurred costs for medical testing and have lost the use of wells for drinking water and farming purposes. The Jones court, when faced with a motion to dismiss, ruled that: These damages [for medical testing, loss of use of wells] appear to meet the definition of "removal" expressed in section 9601(23). 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 costs. 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 1429-1430. It is interesting to note that the Jones court did not actually address the issue of whether costs of medical detection and monitoring are "necessary costs of response" under CERCLA. In United States v. Septa, 24 ERC 1860, 1863 [17 ELR 20001] (E.D. Pa. 1986), the United States District Court for the Eastern District of Pennsylvania, citing the rationale of Jones, supra, refused to strike from the complaint a claim which alleged that "[a]ll of the plaintiffs have been tested [medically] and it is believed that each plaintiff has, and will continue to have, toxic levels of PCB's in their bodies . . ." In Brewer v. Ravan, 680 F. Supp. 1176 [18 ELR 20799] (M.D. Tenn. 1988), the plaintiff sought to recover as response costs under CERCLA expenses incurred as a result of "medical testing and medical screening." The court, citing the Chaplin court's review of the legislative history of CERCLA, concluded that "CERCLA's legislative history clearly indicates that medical expenses incurred in the treatment of personal injuries or disease caused by an unlawful release or discharge of hazardous substances are not recoverable under Section 9607(a)" (emphasis supplied). At the same time however, the Brewer court, citing Jones, 584 F. Supp. at 1429-30, concluded that "[t]o the extent that plaintiffs seek to recover the cost of medical testing and screening conducted to assess the effect of the release or discharge on public health or to identify potential public health problems presented by the release, however, they present a cognizable claim under Section 9607(a)." (emphasis supplied). The Brewer court based its conclusion on the rationale that "[p]ublic health related medical tests and screening clearly are necessary to 'monitor, assess, [or] evaluate a release' and, therefore, constitute 'removal' under Section 9601(23)." Brewer at 1179. The Brewer court further reasoned that "[b]ecause the term 'response' is defined in Section 9601(25) to mean, in part, 'remove or removal," costs incurred as a result of conducting such tests and screening are recoverable response costs under Section 9607(a)." Id. Thus, it appears that the Brewer court has distinguished those medical expenses incurred in the treatment of personal injuries or disease from those incurred as a result of medical testing and screening conducted to assess the effect of the release or discharge on the public health, the latter qualifying as "necessary costs of response" under CERCLA and the former not qualifying as recoverable response costs under CERCLA. The Brewer rationale has been followed by the Eastern District of Kentucky in Lykins v. Westinghouse, 27 ERC 1590 (E.D. Ky. Feb. 29, 1988) and by the Northern District of Ohio in Williams v. Allied Automotive, No. C86-7888, slip op. at 3 (N.D. Ohio, August 3, 1988). It would appear then that at least under the Brewer rationale, plaintiffs' costs of medical screening and/or future medical monitoring constitute recoverable response costs under CERCLA. After reviewing the language of CERCLA, the legislative history and the case law, we believe that costs of medical screening and/or future medical monitoring are clearly not "necessary costs of response" under § 107 of CERCLA, as amended, 42 U.S.C. § 9607(a)(4)(B). Reading the language of CERCLA, one notes that the phrase "necessary costs of response" is not defined anywhere in CERCLA, and the word "response" is defined only as "remove, removal, remedy and remedial action." 42 U.S.C. § 9601(25). The statutory definitions of each of these words do not contain any references whatsoever to medical expenses of any kind nor do they give any inferences that such expenses are recoverable response costs under CERCLA. Rather, the definitions of these words clearly contemplate only the cleanup of toxic substances from the environment. While CERCLA does contain medical care provisions, these provisions are separate from the liability provisions of Section 107 of CERCLA. See Chaplin, supra. Specifically, as part of the 1986 SARA amendments, Congress created the Agency for Toxic Substances and Disease Registry in Section 104(i) of CERCLA to provide medical care and testing to exposed individuals including "tissue sampling, chromosomal testing, epidemiological studies, or any other assistance appropriate under the circumstances." 42 U.S.C. § 9604(i)(4). As noted by the Chaplin court, "[s]uch medical testing [19 ELR 20259] costs clearly differ from either the response costs or clean up costs allowed in Section 9607." Chaplin at 2012. See infra. Certainly, when Congress wanted to provide for medical care and testing, it knew how to do so in explicit language. Our conclusion that costs of medical screening and/or future medical monitoring are not "necessary costs of response" under § 107 of CERCLA finds support in the legislative history of CERCLA. Although as is evident from the original Senate Superfund Bill, Congress contemplated including medical monitoring under CERCLA, Senator Randolph, commenting on the final compromise bill which became CERCLA, specifically stated "[w]e have deleted the federal cause of action for medical expenses or property or income loss." 126 Cong. Rec. S14964 daily ed. Nov. 24, 1980). Indeed, the Supreme Court, after reviewing this legislative history, observed that CERCLA was not intended to compensate private parties for damages resulting from hazardous substance discharge. Exxon Corp., supra. The United States Court of Appeals for the Third Circuit, after reviewing this same legislative history, has indicated that it does not believe that reimbursement for property or income loss is possible under CERCLA. Artesian Water Co. v. New Castle County, 851 F.2d 643, 648-49 [18 ELR 21012] (3d Cir. 1988). We further find the cases which have denied motions to dismiss claims for medical detection and monitoring costs to be unpersuasive. The Jones court never actually addressed the issue of whether costs of medical detection and monitoring are "necessary costs of response." It merely stated that "[t]he statutory definitions of removal and remedial actions are broadly drawn and appear to cover at least some of the elements of damages [medical testing, loss of use of wells] claimed by these plaintiffs." Jones, supra at 1429-1430. The Septa court did not independently analyze the issue of whether costs of medical detection and monitoring are "necessary costs of response" but merely relied on Jones, supra. The only court that performed any type of in-depth analysis of the issue was the Brewer court. As may be recalled in Brewer, the plaintiff sought to recover as response costs under CERCLA expenses incurred as a result of "medical testing and medical screening." The Brewer court distinguished those medical expenses incurred in the treatment of personal injuries or disease from those incurred as a result of medical testing and screening conducted to assess the effect of the release or discharge on the public health. The Brewer court found that the legislative history of CERCLA indicated that the former were not recoverable response costs under Section 107 and that the latter were recoverable response costs. We agree with the Brewer court that the legislative history of CERCLA clearly indicates that those medical expenses incurred in the treatment of personal injuries are not recoverable response costs under CERCLA. However, we do not agree that medical expenses incurred as a result of medical testing and screening conducted to assess the effect of the release or discharge on the public health constitute recoverable response costs under CERCLA. In making the latter determination, the Brewer court relied on the definition of "removal" in Section 9601(23). As noted above, the word "removal" as used in CERCLA means the "clean up or removal of released hazardous substances . . . such actions as may be necessary to monitor, assess, and evaluate the release or threat of release . . . or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damages to the public health or welfare . . . which may otherwise result from a release or threat of release." 42 U.S.C. § 9601(23). Based on this definition, the Brewer court determined that "[p]ublic health related medical tests and screening clearly are necessary to 'monitor, assess, [or] evaluate a release' and, therefore, constitute 'removal' under Section 9601(23)." Brewer at 1179. The court went on to conclude that "[b]ecause the term 'response' is defined in Section 9601(25) to mean, in part, 'remove or removal,' costs incurred as a result of conducting such tests and screening are recoverable response costs under Section 9607(a)." Id. We believe the Brewer court's determination that "[p]ublic health related medical tests and screening clearly are necessary to 'monitor, assess, [or] evaluate a release' contravenes the plain meaning of that phrase. Quite simply, we find it difficult to understand how future medical testing and monitoring of persons who were exposed to contaminated well water prior to the remedial measures currently underway will do anything to "monitor, assess, [or] evaluate a release" of contamination from the site. We, therefore, elect not to follow the rationale of Brewer. For all the foregoing reasons, we determine that costs of medical screening and/or future medical monitoring are clearly not "necessary costs of response" UNDER § 107 OF CERCLA, as amended, 42 U.S.C. § 9607(a)(4)(B). Accordingly, that claim will be stricken from Count One of the complaint. In their complaint, plaintiffs allege that each defendant violated RCRA by (1) storing and disposing of hazardous wastes on their facility without a permit in violation of 42 U.S.C. § 6925(a) (Complaint at paragraphs 64, 66); (2) operating an "open dump" as that term is defined under RCRA (Complaint at paragraph 67) and (3) creating an "imminent and substantial endangerment to the health of the public in general and plaintiffs in particular, and/or to the environment" in violation of 42 U.S.C. § 6973 (Complaint at paragraph 68). In their prayer for relief, plaintiffs ask this court to do the following under RCRA: C. Declare all defendants in violation of RCRA for storing, transporting and disposing of hazardous wastes without a permit, and operating storage, treatment and disposal facilities in violation of federal laws and regulations; D. Declare all defendants in violation of RCRA for creating an imminent and substantial endangerment to human health and/or the environment; E. Order defendants to immediately cease and desist any storage and disposal of hazardous wastes on their property except pursuant to federal and state permits; G. Assess defendants fines of $ 25,000.00 per day for each day defendants violated RCRA. Section 7002 of RCRA, 42 U.S.C. § 6972 provides two distinct causes of action for private citizens such as plaintiffs under RCRA. Section 7002(a)(1)(A) provides that: . . . any person may commence a civil action on his own behalf. (B) against any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. Under Section 7002(a)(1)(B), the relief to be provided is an order restraining any person identified in subsection (1)(B). Unfortunately, plaintiffs have not specified in their complaint exactly which of the two citizen suit provisions their RCRA suit falls under. However, since Section 7002(a)(1)(A) is the only part of RCRA which permits citizen-plaintiffs to seek civil penalties for violations of RCRA, we will assume that plaintiffs' claim for civil penalties and a declaration that defendants violated RCRA is brought under Section 7002(a)(1)(A) of RCRA. Moreover, since Section 7002(a)(1)(B) provides essentially for injunctive relief and not remedies for alleged violations of RCRA, we will assume that plaintiffs' claim for an order directing defendants to immediately cease and desist any storage and disposal of hazardous wastes on their property is brought under Section 7002(a)(1)(B) of RCRA. We will address both claims separately. As noted above, Section 7002(a)(1)(A) of RCRA provides that: . . . any person may commence a civil action on his own behalf (A) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter (emphasis added). The operative language of this provision is "to be in violation." In Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 56 U.S.L.W. 4017 [18 ELR 20142] (Dec. 1, 1987), the Supreme [19 ELR 20260] Court had occasion to construe the meaning of the phrase "to be in violation" in the citizen suit provision of the Clean Water Act.4 The Supreme Court observed that "[t]he most natural reading of 'to be in violation' is a requirement that citizen-plaintiffs allege a state of either continuous or intermittent violation — that is a reasonable likelihood that a past polluter will continue to pollute in the future. Congress could have phrased its requirement in language that looked to the past ('to have violated'), but it did not choose this readily available option." Gwaltney, supra at 4019. As a result, the Supreme Court concluded that the citizen suit provision of the Clean Water Act allows for only prospective relief and bars any suit based on "wholly past" violations of the Clean Water Act. Id. at 4020. The Gwaltney court's interpretation of the phrase "to be in violation" contained in the citizen suit provision of the Clean Water Act applies with equal fervor to the very identical phrase contained in the citizen suit provision of RCRA. Indeed, the Gwaltney Court specifically identified the citizen suit provision of RCRA as one of several environmental statutes that "authorize only prospective relief." Gwaltney, supra at 4020. Thus, we find that Section 7002(a)(1)(A) of RCRA bars any suit based on "wholly past" violations of RCRA. In the case sub judice, plaintiffs admit in their complaint that defendant Thompson purchased the site at 120 Mill Street "on or about January 30, 1986" and remains the property's current owner. Complaint at paragraph 27. It is further undisputed that defendant Athlone owned the site from 1972 until its sale to Thompson in 1986 and that Sequa and its predecessor in interest owned the site from 1959 until its sale to Athlone in 1972. Since Sequa has not owned or operated the site since 1972 and Athlone has not owned or operated the site since January 30, 1986, any alleged violations of RCRA by Sequa and Athlone would necessarily be "wholly past" violations. Under the tenets of Gwaltney, plaintiffs' cause of action against Sequa and Athlone under Section 7002(a)(1)(A) of RCRA would have to be barred. Plaintiffs do not appear to dispute the fact that Gwaltney bars citizen-plaintiffs who seek civil penalties under RCRA from pursuing claims for "wholly past" violations. Instead, plaintiffs argue that they have indeed successfully alleged ongoing RCRA violations at 120 Mill Street. According to plaintiffs, these allegations include the maintenance of an "open dump" (Complaint at paragraph 67) and the creation of an imminent and substantial endangerment to public health and the environment (Complaint at paragraph 68). Plaintiffs' Reply to Defendant's Motion to Dismiss at pp. 16-17. Unfortunately for plaintiffs, their allegation that defendants have disposed of hazardous wastes in a manner constituting maintenance of an "open dump" is not indicative of an "ongoing" violation and the allegation that defendants have created an "imminent and substantial endangerment" to public health and the environment merely restates language contained in RCRA. In any event, since neither Sequa nor Athlone are the owners or operators of 120 Mill Street, they cannot be held responsible for maintaining either an open dump or an imminent hazard at that site. Perhaps realizing that they have failed to allege ongoing violations of RCRA by Sequa and Athlone, plaintiffs contend that they have "uncovered" the following facts in discovery which would be sufficient to show an ongoing violation of RCRA if proved at trial. (1) Drums of hazardous waste (still owned by defendant Athlone) are stored on 120 Mill Street; (2) Neither Athlone, the owner of the drums, nor Thompson, the owner of the property, has a permit for the storage of said drums of hazardous waste; (3) Such storage of hazardous waste contributes an ongoing violation of RCRA at 120 Mill Street, Dublin, PA; (4) Failure to clean up the hazardous waste under 120 Mill Street will cause the plume of hazardous substances to spread and concentrations to increase, thus maintaining an imminent and substantial endangerment in and around 120 Mill Street. Plaintiffs' Reply to Defendant's Motion to Dismiss at p. 16. Even assuming the validity of these facts, they are insufficient to show an ongoing violation of RCRA by Athlone.5 The short answer is that RCRA does not require owners of drums, even if these drums contain hazardous wastes, to have a storage permit. Rather, under 42 U.S.C. § 6925(a), only the owner or operator of the facility that stores the drums is required to have a permit under RCRA. Since Athlone ceased owning or operating the site on January 30, 1986, it is no longer the owner or operator of a facility and is, therefore, not required to have a RCRA storage permit under 42 U.S.C. § 6925(a). Accordingly, plaintiffs' RCRA claims against defendants Sequa and Athlone under Section 7002(a)(1)(A) of RCRA must be dismissed. We have just concluded that, given the prospective nature of Section 7002(a)(1)(A) of RCRA, plaintiffs' cause of action against Sequa and Athlone under that section must be dismissed. However, since Thompson is the current owner of the Mill Street site, we cannot employ the Gwaltney rationale to dismiss the Section 7002(a)(1)(A) cause of action against Thompson. We, therefore, must address each of the alleged violations of RCRA in Count Two of the complaint as applied to defendant Thompson. Plaintiffs first allege that Thompson stored and disposed of hazardous wastes on his facility without a permit in violation of 42 U.S.C. § 6925(a). (Complaint at paragraphs 64, 66). That provisions provides in pertinent part: Not later than eighteen months after October 21, 1976, the Administrator shall promulgate regulations requiring each person owning or operating an existing facility . . . for the treatment, storage, or disposal of hazardous waste . . . to have a permit issued pursuant to this section . . . Plaintiffs also assert that Thompson violated the open dumping provision of RCRA. (Complaint at paragraph 67). RCRA defines an "open dump" as follows: The term "open dump" means any facility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 6944 of this title and which is not a facility for disposal of hazardous waste. (emphasis added). This definition clearly excludes hazardous waste disposal facilities from consideration as open dumps. Thus, plaintiffs cannot allege on the one hand that Thompson operated a hazardous waste disposal facility without a permit and on the other hand allege that Thompson operated an open dump. We, therefore, will not rule on either claim at this point other than to note that the claims cannot be brought simultaneously. Finally, we note that plaintiffs allege that Thompson has created an "imminent and substantial endangerment to the health of the public in general and plaintiffs in particular, and/or to the environment in violation of 42 U.S.C. § 6973." Complaint at paragraph 68. This provision, known as the Solid Waste Disposal Act, empowers the Administrator of the United States Environmental Protection Agency to bring suit on behalf of the United States to bring an action against any person who has contributed to the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste which presents an imminent and substantial endangerment to health or the environment and to seek fines for any violation of an EPA order to abate issued under Section 6973(a). Since plaintiffs, in the case sub judice are private citizens and not the Administrator of the EPA, they have no recourse against Thompson under this provision of the RCRA. Moreover, since the EPA has not issued an order under Section 6973(a), Thompson cannot be charged with violating this section. As noted above, Section 7002(a)(1)(B) provides that: . . . any person may commence a civil action on his own behalf (B) against any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present heading, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . 42 U.S.C. § 6972(a)(1)(B). However, Section 7002(b)(2)(B)(iv) restricts the availability of a citizen suit under Section 7002(a)(1)(B). Section 7002(b)(2)(B)(iv) provides as follows: (B) No [citizen suit] action may be commenced under subsection (a)(1)(B) of this section if the Administrator [of the United States Environmental Protection Agency], in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment — (iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 U.S.C.A. § 1606] or section 6973 of this title pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action. In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) of this section are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). 42 U.S.C. § 6972(b)(2)(B)(iv). In the case sub judice, Thompson has entered into a "Consent Agreement and Order" with the United States Environmental Protection Agency ("EPA") under Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. Paragraph 15 of the Consent Agreement and Order, a copy of which is attached as Exhibit A, states that "[a]n imminent and substantial endangerment to the public health, welfare, or the environment may be present as result of the release or threat of release of hazardous substances at the site." Paragraph 16 states that the "EPA has determined that the actions set forth below must be taken to protect public health and welfare and the environment." Specifically, under paragraph 21, Thompson is required to diligently proceed with the following remedial action: . . . to assure that all residents and commercial employees exposed to TCE levels greater than 5ppb have an adequate treatment system in place, to provide periodic monitoring of all present treatment systems to assure that they are functioning properly, and to conduct periodic groundwater monitoring of wells for all residents at risk in accordance with [a Work Plan agreed to by the EPA]. In addition, paragraph 36 of the Consent Agreement and Order provides in part that "[t]his Consent Agreement and Order shall remain in effect until such time as a final remediation of TCE contamination of the Dublin water supply, satisfactory to EPA, has been conducted." In addition to the EPA's involvement at the site, the Commonwealth of Pennsylvania Department of Environmental Resources ("DER") has required Thompson to investigate the sources of environmental contamination on the Mill Street property in anticipation of the future remediation of the site under the DER's direction. See DER letter dated April 2, 1987, a copy of which is attached as Exhibit B. Thus, based on the EPA's Consent Agreement and Order pursuant to § 106 of the CERCLA and the DER's directive to develop a remediation plan for the site, it would appear that, pursuant to § 7002(b)(2)(B)(iv) of RCRA, plaintiffs' citizen suit against the defendants under § 7002(a)(1)(B) of RCRA must be dismissed. Plaintiffs argue, however, that their cause of action under § 7002(a)(1)(B) should not be prohibited by § 7002(b)(2)(B)(iv) in this instance because the injunctive relief they seek goes beyond the scope and duration of the Consent Agreement and Order. specifically, plaintiffs contend that the Consent Agreement and Order does not "require removal of hazardous wastes or acquisition of a storage permit for the drums." Plaintiffs' Reply to Defendants' Motion to Dismiss at 18-19. Plaintiffs, citing paragraphs E and F of their Prayer for Relief, point out that they specifically requested such relief. These paragraphs request the court to: E. Order defendants to immediately cease and desist any storage and disposal of hazardous wastes on their property except pursuant to federal and state permits; F. Order defendants immediately to take such steps as are necessary to abate the nuisance condition on their property.6 As noted above, § 7002(b)(2)(B)(iv) also states that "[i]n the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) of this section are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). The question then becomes just what is the meaning of "scope" within the statutory section. The legislative history on this point is particularly instruction. "The conference committee report, representing the final statement of terms agreed to by both houses, next to the statute itself, is the most persuasive evidence of congressional intent." Fishel v. Westinghouse Elec. Corp., 617 F. Supp. 1531, 1539 [16 ELR 20001] (M.D. Pa. 1985) citing Sierra Club v. Clark, 755 F.2d 608 [15 ELR 20391] (8th Cir. 1985); Monterrey Coal Co. v. Federal Mine Safety and Health Review Comm'n, 743 F.2d 589 (7th Cir. 1984). The report states the following with respect to the meaning of "scope": The Conferees intend that the section 7002(b)(2)(B)(iv) prohibition be limited only to the scope and duration of the court or administrative order. For example, an administrative order issued under section 106 of CERCLA or section 7003 of RCRA for surface cleanup at a site would not bar an action alleging that groundwater contamination at the site may present an imminent and substantial endangerment. 1984 U.S. Code Cong. and Ad. News 5576, 5649, 5689. In the case sub judice, we are faced with a situation exactly opposite that of the example given by the Conferees. Here, the Consent Agreement and Order issued under section 106 of CERCLA is for "final remediation of TCE contamination of the Dublin water supply" while the injunctive relief plaintiffs seek under § 7002(a)(1)(B) pertains to surface cleanup of hazardous wastes. Prayer for Relief at paragraph E. Because plaintiffs are not seeking review of the Consent Agreement and Order dealing with remedial measures for underground contamination, but are seeking surface cleanup of hazardous wastes, their citizens suit under § 7002(a)(1)(B) may proceed. The motion of defendant Sequa Corp. to dismiss the complaint is GRANTED in part and DENIED in part. The motion of defendant Athlone Industries, Inc. to dismiss the complaint is GRANTED in part and DENIED in part. The motion of defendant John H. Thompson to dismiss the complaint is GRANTED in part and DENIED in part. As to Count One of the complaint, plaintiffs' claim for medical screening and/or future medical monitoring costs under Section 107(a)(4)(B) of CERCLA is STRICKEN from the complaint. Plaintiffs' claim for water monitoring costs under Section 107(a)(4)(B) of CERCLA shall remain. As to Count Two of the complaint, plaintiffs' claims under Section 7002(a)(1)(A) of RCRA are STRICKEN in their entirety against defendants Sequa Corp. and Athlone Industries. Plaintiffs' claims under Section 7002(a)(1)(A) of RCRA against defendant John H. Thompson for violation of Section 6925(a) (operation of hazardous waste disposal facility) and the open dump provisions of RCRA shall remain. Since these claims cannot be brought simultaneously, however, plaintiffs are DIRECTED to [19 ELR 20262] specify which of the two claims they wish to assert against Thompson. Plaintiffs' claim under Section 7002(a)(1)(A) of RCRA against defendant John H. Thompson for violation of Section 6973 of RCRA is STRICKEN from the complaint. Plaintiffs' claim under Section 7002(a)(1)(B) of RCRA shall remain as to all defendants. Because the court retains jurisdiction over parts of the CERCLA and RCRA counts the state law claims in Counts III through V of the complaint shall remain. Recognizing that this Order is not otherwise appealable under the statute governing interlocutory appeals, 28 U.S.C. § 1292(a), and our Order involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially and expeditiously advance the ultimate termination of this litigation, we shall certify this case for an expedited interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The questions certified are as follows: Whether costs of medical screening and/or future medical monitoring are "necessary costs of response" under § 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. § 9607(a)(4)(B). Whether plaintiffs' citizen suit against defendants Sequa Corp. and Athlone Industries, Inc. under § 7002(a)(1)(A) of the Resource Conservation and Recovery Act ("RCRA") is precluded by the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 56 U.S.L.W. 4017 [18 ELR 20142] (Dec. 1, 1987). Whether plaintiffs' citizen suit against all defendants under § 7002(a)(1)(B) of RCRA is precluded by reason of the Environmental Protection Agency's Consent Agreement and Order pursuant to § 106 of CERCLA, or the Commonwealth's directive to develop a remediation plan for the site. 1. By order dated February 25, 1988, we denied all of the motions to dismiss with leave to renew at the time of trial, finding that they would be better presented after all discovery was completed and a fuller record developed. The defendants have now renewed these motions. 2. Defendants do not contend that the water monitoring costs which plaintiffs also seek in Count One of their complaint at paragraph 49 are not "necessary costs of response" under CERCLA. Rather, defendants assert that these costs are simply a pretext for asserting that this court has subject matter jurisdiction over this action. Specifically, defendants point out that in their complaint at paragraph 25, plaintiffs allege that this action is related to Whistlewood Commons, et al v. Sun Chemical Corp. et al, C.A. No. 87-6407 in which the owner of plaintiffs' apartment complex sought detailed response costs incurred with respect to a water treatment system. Defendants argue that since "a related party has already incurred the necessary costs of removing TEC from the Whistlewood Complex water," plaintiffs in the case sub judice "cannot assert in good faith that they will incur future costs for water monitoring." Memorandum in Support of Motion of Defendant Sequa Corporation to Dismiss at p. 12. While defendants' argument may well be meritorious, at least at this stage of the proceedings we are not convinced beyond doubt that the plaintiffs can prove no set of facts in support of their claim for costs of water monitoring which would entitle them to relief. Accordingly, this claim will not be stricken from the complaint. Defendants may renew their request to strike the claim for water monitoring costs at trial if indeed a trial becomes necessary in this matter. 3. Under Section 105 of CERCLA, 42 U.S.C. § 9605, Congress created the Hazardous Substance Response Fund ("Superfund"). The federal government is authorized to use the Superfund to finance governmental response activities, to pay claims arising from the response activities of private parties, and to compensate federal or state governmental entities for damage caused to natural resources. CERCLA § 111(a), 42 U.S.C. § 9611(a). 4. That provision provides that: . . . any person may commence a civil action on his own behalf (1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator of a State with respect to such a standard or limitation . . ." 33 U.S.C. § 1365(a)(1) (emphasis added). 5. Since none of these four "facts" implicate Sequa and since Thompson is the current owner of the site, we only address the merits of these four "facts" as to Athlone. 6. We note that abatement of a nuisance is indicative of relief under a state law damage theory of nuisance rather than of relief under RCRA. 19 ELR 20256 | Environmental Law Reporter | copyright © 1989 | All rights reserved |