County Line Investment Co. v. Tinney

No. 88-C-550-E (N.D. Okla. June 15, 1989)

The court holds that private plaintiffs seeking reimbursement under the Comprehensive Environmental Response, Compensation, and Liability Act of their closure costs at a sanitary landfill have failed to establish that their response costs are consistent with the National Contingency Plan. Plaintiffs failed to perform an adequate remedial investigation/feasibility study, provide for public comment concerning the selected remedy, or show that their remedial actions were cost effective. The court also dismisses plaintiffs' state law unjust enrichment claim, since defendant was never deemed liable for the closure of the landfill and thus received no benefit by not having to expend cleanup costs.

Counsel for Defendant
Charles W. Shipley, Blake K. Champlin
Shipley & Schneider
3401 First National Tower, Tulsa OK 74103
(918) 582-1720

Counsel for Plaintiffs
David A. Carpenter
320 S. Peoria, Ste. 507, Tulsa OK 74103
(918) 749-0050

Dennis C. Cameron
Gable & Gotwals
2000 Fourth National Bank Bldg., Tulsa OK 74119
(918) 582-9201

[19 ELR 21312]

Ellison, J.:

Order

NOW on this 15th day of June, 1989, comes on for consideration the above styled matter and the Court, being fully advised in all premises finds that Defendant Tinney has moved for summary judgment on issues of consistency with the National Contingency Plan, unclean hands, & unjust enrichment. This Court finds disingenuous the argument in favor of unclean hands and will not grant summary judgment upon this basis. The other grounds which Defendant urges, however, are more credible and require extensive analysis.

Consistency With the National Contingency Plan

Plaintiffs are seeking to recover on three claims arising out of the closure of a sanitary landfill called D&N Landfill. This landfill was operated on property currently owned by Wagco. The first and second claims arise under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607, with the first claim being a private cost recovery action under § 107 and the second being a contribution claim under § 113(f).

In order to recover under CERCLA, plaintiffs must establish that their response is consistent with the National Contingency Plan. 42 U.S.C. § 9607(a)(4)(B). State of Colo. v. Idarado Min. Co., 707 F. Supp. 1227 [19 ELR 20794] (D. Colo. 1989); Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1291 [18 ELR 20785] (D. Del. 1987). The National Contingency Plan ("NCP") regulates the manner in which response actions are to be evaluated when hazardous substances are released into the environment. Evaluation for conformity with the NCP at this stage of the proceedings is proper, in order to determine whether Plaintiffs are entitled to recover any of their response costs and to avoid useless trial of the case at a later juncture, should Plaintiffs fail to show the requisite consistency. Although Plaintiffs have cited a number of cases in which courts have ruled that summary judgment could not be granted, close scrutiny of those cases reveals that an insufficient factual record existed on which to judge consistency. Such is not the case here, and the Court finds the issue to be ripe for determination.

Plaintiffs urge that their closure, post-closure maintenance and monitoring of the landfill comprises a remedial action under CERCLA. While some portions of the NCP are voluntary, others are mandatory in order to lead to action considered remedial under CERCLA. See § 300.71(a)(2)(ii)(B). Among other items, parties must precede any such remedial action by performance of a Remedial Investigation/Feasibility Study ("RI/FS") to "determine the nature and extent of the threat presented by the release and to evaluate proposed remedies." 40 C.F.R. § 300.68(d) (1986). The RI/FS must also include "sampling, monitoring, and exposure assessment," along with "the gathering of sufficient information to determine the necessity for and proposed extent of remedial action." Id. The action taken by Plaintiffs does not rise to this level. The uncontroverted facts reflect that Plaintiffs caused to be performed on the property a metal detector survey and a trenching and sampling event in 1986. Additionally, the testimony of Mr. Truby, who developed the Remedial Action/Closure for Plaintiffs, reveals that numerous activities required by the NCP were not carried out. This Court finds that Plaintiffs' actions are insufficient to achieve compliance with the NCP as regards the RI/FS.

Under the NCP, parties are required to provide "an opportunityfor appropriate public comment concerning the selection of a remedial action consistent with § 300.67(d)." 40 C.F.R. § 300.71(a)(2)(ii)(D). No such period of public comment was provided by Plaintiffs. Section 300.71(a)(2)(ii)(C) requires private party remedial actions to be cost-effective. No such showing has been made that the action taken was in fact cost-effective. Thus this Court finds that Plaintiffs' actions fail to be consistent with the required portions of the NCP, thus rendering Plaintiffs incapable of recovering the costs expended by them in clean-up of the landfill. Summary judgment must therefore be granted to Defendant on Plaintiffs' first and second causes of action. Such action is consistent with guiding principles of environmental law and

amply demonstrates the difference between an action for response costs under CERCLA and an action for damages in tort. Limiting recovery of the costs . . . ensures that responsible parties will be liable under CERCLA only for necessary costs of response. Permitting recovery in any other circumstances would invite suits for a broad range of economic losses and ultimately transform CERCLA into a toxic tort statute. Congress did not intend for CERCLA, a narrowly drawn federal remedy, to make injured parties whole or to be a general vehicle for toxic tort actions. Unless Congress sees fit to provide such a remedy, full compensation for hazardous waste harms will in most instances remain the province of state law.

Artesian Water, supra, at 1299-1300.

Unjust Enrichment

Plaintiffs' third cause of action is a state law claim for unjust enrichment. Under this theory, Plaintiffs would be entitled to recover the "benefit" Defendant received by virtue of not having to expend clean-up costs. However when, as here, the benefit is gratuitously granted or involuntarily acquired by a defendant, liability is not imposed. See Woodruff v. New State Ice Co., (10th Cir. 1952). Defendant Tinney urges that no benefit was conferred upon him, as Tinney was never deemed liable for the closure of D&N Landfill under Oklahoma sanitary landfill regulations or CERCLA. Defendant cites, in his reply brief, a case persuasive to this Court for its analysis of the state law unjust enrichment claim. Smith Land Improvement Corporation v. Rapid-American Corporation, Case No. 86-0116 [18 ELR 20769] (M.D. PA Sept. 21, 1987), rev'd on other grounds, 851 F.2d 86 [18 ELR 21026] (3rd Cir. 1988). Additionally pertinent to determination of the instant case is the fact that Defendant [19 ELR 21313] Tinney never requested or authorized Plaintiffs to take any action or expend any amounts on his behalf. Based upon the above and foregoing, this Court finds that the granting of summary judgment to Defendant on Plaintiff's third cause of action is appropriate at this time.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant Tinney's Motion for Summary Judgment is granted in its entirety and this case should be and is hereby dismissed.