Price v. U.S. Navy

• Citation: 39 F.3d 1011
• Decision Date: 07 November 1994
• Docket Number: No. 93-55447,93-55447
• Parties: , 63 USLW 2317, 30 Fed.R.Serv.3d 854, 25 Envtl. L. Rep. 20,177 Gloria PRICE, Plaintiff-Appellant, v. UNITED STATES NAVY; Harry Moses; Marguerite Moses (deceased); Michael Moses; Shirley Moses, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1011

39 F.3d 1011

39 ERC 1673, 63 USLW 2317, 30

Fed.R.Serv.3d 854,

25 Envtl. L. Rep. 20,177

Gloria PRICE, Plaintiff-Appellant, v. UNITED STATES NAVY; Harry Moses; Marguerite Moses

(deceased); Michael Moses; Shirley Moses,

Defendants-Appellees.

No. 93-55447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1994.

Decided Nov. 7, 1994.

John H. Reaves, San Diego, CA, for plaintiff-appellant.

Edward Shawaker, David M. Thompson, Andrew C. Mergen, U.S. Dept. of Justice, Washington, DC, for defendant-appellee U.S. Navy.

Appeal from the United States District Court for the Southern District of California.

Before: D.W. NELSON and NOONAN, Circuit Judges, and KING, ^* District Judge.

SAMUEL P. KING, District Judge:

Gloria Price, the owner of a house resting on a contaminated former landfill, appeals from various orders of the district court in her private action for recovery of response costs under CERCLA ¹ and for injunctive relief under RCRA ² against the United States Navy and Harry Moses. In particular, Price appeals from the orders of the court which (1) dismissed Price's claim under CERCLA for medical monitoring costs, (2) denied Price's claim under CERCLA for attorneys' fees, and (3) dismissed Price's claim for injunctive relief under RCRA which sought to require the Navy to remove allegedly contaminated soil from beneath her house. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and affirm in part and reverse in part.

FACTS

In the mid-1930's, the United States Navy dumped paints containing lead, copper and zinc, used asbestos gaskets and insulation on a junkyard in Paradise Hills in San Diego, California. The junkyard included what are now 6021, 6025, 6035 and 6045 Edgewater Street, four contiguous properties. The property at 6025 Edgewater was purchased in 1958 by Harry Moses, who built a house on it in 1960. Price eventually came to own the residence at 6025 Edgewater Street.

In October 1988, Price hired Sylvan Pools, Inc. to construct a pool in the backyard of her home. During the pool excavation Sylvan discovered what it believed to be asbestos in the soil. Sylvan notified the San Diego County Department of Health Services which took samples of the soil and confirmed the presence of asbestos in the front and backyard at 6025 Edgewater. In addition, concentrations of lead above the State TTLC levels ³ were found in samples from 6025 Edgewater. Price moved herself and her family out of her home and into her sister's home for fear of exposure to the contaminants.

In November 1988, Price expended $30,153.56 to remove the large piles of contaminated soil that had been deposited in her yard and her neighbor's yard by Sylvan during the pool excavation. This action was necessitated by an official notice requiring Price to remove the contaminated material.

On July 5, 1989, the State of California, Department of Health Services, Toxic Substances Control Division, determined that the former junkyard site presented an imminent and substantial endangerment to the public health, welfare and the environment. The State based its determination on the fact that the presence of metals, including lead, zinc and copper, and asbestos in the surface soils at the site (6021, 6025, 6035 and 6045 Edgewater) demonstrated that there had been a release of hazardous substances; and that immediate action was necessary to prevent ingestion of contaminants by children, residents and visitors to the site. According to state officials, the contaminants did not present a threat to ground water, surface water or air.

From December 1989 to January 1990, the State undertook a cleanup of the four yards. The State hired International Technologies Corporation ("ITC") to perform the cleanup. ITC's removal and remedial action included excavation down to three feet of the entire back yards and replacement with clean fill. Concrete was placed along the side yards. In addition, ITC placed new sod in the front and back yards and decorative slabs and a new fence in the back yard of 6025 Edgewater. ITC did not dig under the driveway or home at 6025 Edgewater.

After the cleanup was completed, ITC collected soil samples. A total of six borings were made, some to a depth of approximately 17 feet below ground level at the site. The samples revealed that no contamination remained in any areas of the site. This included a boring taken from beneath the foundation at 6021 Edgewater. No boring or sample was taken from beneath the foundation at 6025 Edgewater.

PROCEEDINGS BELOW

The instant lawsuit was filed in October of 1989. In her first amended complaint, Price asserted claims against the Navy, the Moses family (former owners of the property) and Sylvan Pools. ⁴ Price asserted a private cost recovery action under CERCLA to recover the $30,000 spent to remove the contaminated soil unearthed by the pool excavation, as well as attorneys' fees and the costs of "medical bills, including the cost of medical care and testing, tissue sampling, chromosomal testing, epidemiological studies and other assistance." She also sought an injunction under RCRA requiring the defendants to remove the contamination which she asserted was still on the property. ⁵

The case was originally assigned to the Honorable Earl B. Gilliam. On October 2, 1992, Judge Gilliam held that the defendants were responsible parties under CERCLA, entitling Price to recover her cleanup costs, while reserving for trial "The amounts or questions of reducing or disallowing private plaintiff total recovery as a result of contribution issues and payments from other sources." The court also held that Price was entitled to recover attorneys' fees.

The matter was reassigned to the Honorable Irma E. Gonzalez for trial. The case was tried in October over a period of nine days. At trial, Price put on proof as to her private cleanup expenses, relocation expenses, medical monitoring costs, and attorneys' fees, and also sought an injunction under RCRA for future destruction and rebuilding of the Price house. The district court entered a series of four orders relevant to these claims.

On October 21, 1992, the district court held that private "response costs" under CERCLA do not include the cost of medical monitoring to detect the onset of any latent disease caused by exposure to hazardous waste. The court based its decision on the reasoning of Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir.1992), which the court found to be persuasive.

On October 22, 1992, the United States brought a motion for judgment on partial findings pursuant to Rule 52(c) of the Federal Rules of Civil Procedure seeking dismissal of Price's RCRA count. The court verbally granted the government's motion and Price moved for reconsideration. On November 13, 1992, the court entered a written order setting forth its basis for granting the government's motion to dismiss. The court held, after considering the testimony and evidence presented at trial, that Price had failed to meet her burden that an "imminent and substantial endangerment" to health or environment presently exists, and accordingly dismissed Price's RCRA claim against the Navy. ⁶

On November 30, 1992, the district court reversed the earlier ruling on attorneys' fees pursuant to the government's motion for reconsideration, holding that Price was not entitled to recover such fees.

Finally, on December 4, 1992, the district court addressed Price's remaining CERCLA claims. The court found the Navy ninety-five percent liable and Moses one percent liable for Price's "response costs." ⁷ These "response costs" included the $30,000 spent to remove the soil unearthed by Sylvan, and $4,475 incurred by Price and her family for relocation while the cleanup took place. However, the court made an actual award of $0 because under 42 U.S.C. Sec. 9614(b), any person who receives compensation for removal costs pursuant to any other federal or state law is precluded from receiving compensation for the same removal costs under CERCLA. The State had already paid Price $25,000 as reimbursement for the cleanup and associated costs. In addition, Price received $30,000 from the settlement of her claims against Sylvan. The district court determined that these payments were made pursuant to state and/or federal law, and thus awarded Price nothing. Price does not appeal from the decision awarding her $0 net recovery.

DISCUSSION

1. Failure to Sign Notice of Appeal

The first issue we must address is Price's failure to sign her Notice of Appeal. The original notice filed in this case indicates that Price was appealing in propria persona, ⁸ and was not signed by Price herself, but by her husband Thomas Price "on behalf of Gloria Price". ⁹ Thomas Price is not a party to this action and is not an attorney. The Navy asserts that the appeal should therefore be dismissed. We have so held in the past.

In McKinney v. De Bord, 507 F.2d 501 (9th Cir.1974), a state prisoner brought a Sec. 1983 action for himself, his mother and another prisoner. His claims were denied by the trial court. The notice of appeal was signed only by the prisoner, although it purported to be on behalf of all plaintiffs. The Likewise, the court in Carter v. Commissioner of Internal Revenue, 784 F.2d 1006 (9th Cir.1986) dismissed the appeal of a pro se party who failed to sign the joint notice of appeal. The notice was signed only by her husband. The Court reasoned that:

court dismissed the appeal as to the mother and the other prisoner "because the notice of appeal must be signed by the party or the party's attorney." Id. at 503.

The only means of determining which litigants are interested in pursuing an appeal is by requiring each pro se party to personally sign the notice of appeal. Imposition of this requirement does not unduly burden the prospective appellant and acts to protect the rights and interests of all parties to the litigation. It is the only practical way to specify the party o...