Werlein v. US

• Decision Date: 04 September 1990
• Docket Number: Civ. No. 3-84-996.
• Parties: Harry George WERLEIN, et al., Plaintiffs, and David Yepma, et al., Plaintiffs-Intervenors, v. The UNITED STATES of America, The United States Department of Defense, The Honorable Casper W. Weinberger, Secretary of Defense, The United States Department of the Army, The Honorable John O. Marsh, Secretary of the Department of the Army, Federal Cartridge Corporation, Honeywell, Inc., Norton Ervin Anderson, and Sylvester Bendel, Defendants.
• Court: U.S. District Court — District of Minnesota

746 F. Supp. 887

Harry George WERLEIN, et al., Plaintiffs, and David Yepma, et al., Plaintiffs-Intervenors, v. The UNITED STATES of America, The United States Department of Defense, The Honorable Casper W. Weinberger, Secretary of Defense, The United States Department of the Army, The Honorable John O. Marsh, Secretary of the Department of the Army, Federal Cartridge Corporation, Honeywell, Inc., Norton Ervin Anderson, and Sylvester Bendel, Defendants.

Civ. No. 3-84-996.

United States District Court, D. Minnesota, Third Division.

September 4, 1990.

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John Van De North, Jr., Ann Huntrods and David McDonald of Briggs & Morgan, St. Paul, Minn., for plaintiffs.

Peter Colby and Ina Strichartz, Dept. of Justice, Washington, D.C., for U.S.

Douglas Rainbow and Nicholas Nierengarten of Harstad & Rainbow, Minneapolis, Minn., for FHI.

Scott Smith of Popham Haik Schnobrich & Kaufman, Minneapolis, Minn., for Honeywell, Inc.

Maclay Hyde and Nancy Quattlebaum of Gray Plant Mooty Mooty & Bennett, Minneapolis, Minn., for Erickson and Bendel.

ORDER

RENNER, District Judge.

Before the Court are a host of summary judgment and dismissal motions by defendants the United States of America, et al. ("United States"), Federal-Hoffman, Inc. ("FHI"), Honeywell, Inc., ("Honeywell"), Norton Erickson ("Erickson") and Sylvester Bendel ("Bendel"), as well as plaintiffs' renewed motion for class certification.

This matter came on for oral hearing on March 21, 1990.

This case is a complex and long-lived action arising out of chemical discharges, primarily of trichloroethylene ("TCE"), by various tenants at the Twin Cities Army Ammunition Plant ("TCAAP") and the "Trio Solvents" site.¹ Plaintiffs are citizens who reside near the two sites, and who rely on water supplies allegedly polluted by defendants.

These motions present the Court with the unenviable task of attempting to reconcile the myriad federal and state statutes governing toxic pollution, namely: the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., the Minnesota Environmental Response and Liability Act ("MERLA"), Minn.Stat. § 115B.01 et seq., and the Minnesota Environmental Rights Act ("MERA"), Minn. Stat. § 116B.01 et seq.

Plaintiffs also assert common law claims based on strict liability for ultrahazardous activity, nuisance, trespass, battery, and intentional and negligent infliction of emotional distress.

The claims in plaintiffs' complaint are separable into two distinct groups: those seeking injunctive relief, and those seeking monetary damages. Plaintiffs' claims for injunctive relief are brought under the above mentioned environmental statutes. Plaintiffs ask the Court to use its injunctive powers to supervise and expedite the cleanup of contaminants at the TCAAP and Trio Solvents sites.

Besides response costs under the environmental statutes, plaintiffs' damage claims are brought pursuant to the common law. Plaintiffs seek compensation for personal injuries allegedly caused by the contaminants they have ingested, as well as property damages. Plaintiffs also seek a medical monitoring fund, to be financed by defendants, that will reimburse persons exposed to contaminated water for the costs of medical screening.

The Court will address the injunctive claims first, then the damage claims, then the class certification issues, and finally an outstanding pre-trial matter.

I. Injunctive Relief

1. 42 U.S.C. § 9613(h)

Plaintiffs seek injunctive relief pursuant to the above mentioned statutes. TCAAP defendants assert that CERCLA section 113(h), 42 U.S.C. § 9613(h), deprives this Court of subject matter jurisdiction to hear plaintiffs' injunctive claims to the extent that those claims challenge the ongoing cleanup at TCAAP.² Section 9613(h) states in relevant part:

No Federal Court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under state law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

. . . . .

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

Defendants assert that the plain language of the statute deprives this court of jurisdiction over plaintiffs' federal and state injunctive claims. Defendants argue that because these claims in large part seek to force the parties to the FFA to speed up the cleanup at TCAAP, the claims are challenges to a remedial action within the meaning of section 9613(h).

Plaintiffs proffer two arguments in opposition. First, plaintiffs argue that section 9613(h) is facially inapplicable because it states that courts have no jurisdiction to review challenges to remedial actions selected under section 9604. Plaintiffs contend that the remedial actions at TCAAP were not selected under section 9604, but rather under section 9620. Plaintiffs point out that the FFA is entitled "Federal Facility Agreement Under Section 120."

The Court disagrees. Section 9604(a)(1) empowers the President of the United States to provide for removal or remedial action whenever there is a release of a hazardous substance. Section 9615 authorizes the President to delegate this response authority. In cases where the release occurs on private land, the President has delegated the response authority to the Administrator of the EPA. Exec. Order No 12,580 § 2(g), 3 C.F.R. 193 (1988). In cases where the release occurs on property owned by the Department of Defense, the President's response authority is delegated to the Secretary of Defense, who must exercise that authority "consistent with the requirements of section 9620." Exec. Order No 12,580 2(d), 3 C.F.R. 193 (1988).

Section 9620 provides a road map for application of CERCLA to federal facilities. Subsection (e)(1) orders federal owners/operators of sites where a release has occurred to consult with the EPA and formulate a remedial investigation and feasibility study ("RI/FS") not later than six months after such facility is included on the National Priorities List.

Subsection (e)(2) commands the head of the concerned department or agency to enter into an inter-agency agreement with EPA.³ The agreement must provide for expeditious remedial action at the facility in question. Physical remedial action must commence within 15 months of completion of the RI/FS. The inter-agency agreement must comply with the public participation requirements in section 9617.

Plaintiffs base their assertion that the TCAAP cleanup is proceeding under section 9620 primarily on subsections (e)(1) and (2). Plaintiffs argue that those subsections create a source of cleanup authority within CERCLA which is separate and distinct from section 9604. Defendants respond that section 9620 is primarily a procedural section which provides for EPA participation in cleanups at federal facilities and sets certain timetables.

Plaintiffs' argument is interesting. On balance, though, the Court must conclude that the authority for the TCAAP cleanup stems from section 9604. If section 9604 did not apply to federal facilities, then there would be no reason for the President to delegate response authority to the Secretary of Defense. If, as the Court believes, section 9604 applies to federal facilities, then there is no rationale for including a second CERCLA section which separately empowers remedial action.

Viewed in this light, defendants' suggestion that section 9620 dictates separate procedures for federal facility cleanups makes sense. By the very terms of Exec. Order No. 12,580 § 2(d), any cleanup at a Department of Defense facility must comply with section 9620. If section 9620 supplied a separate source of cleanup power, then theoretically the Secretary of Defense would have to state at the beginning of a cleanup "this is a section 9604 cleanup in compliance with section 9620," or "this is solely a section 9620 cleanup," or both. The Court can think of no reason why Congress would create such a scheme, since no particular consequences, other than the application of section 9613(h), would flow from the choice.

The Court holds that the TCAAP remedial action is proceeding under section 9604, subject to the requirements of section 9620. Consequently, section 9613(h) is applicable here.

Second, plaintiffs argue that section 9613(h) does not apply to injunctive claims arising under other statutes, but only to citizen suits under CERCLA itself. After considerable deliberation, the Court must now disagree.⁴ The statute by its very terms states that the Court has no subject matter jurisdiction to hear "any challenges" "under Federal law ... or under state law." The fact that the statute states it applies to state law shows that Congress intended section 9613(h) to extend beyond CERCLA.

The Court has found no case law which squarely confronts the issue at hand. Nevertheless, the cases that come close support the Court's conclusion. Several courts have held that plaintiffs, both polluters and concerned citizens, may not use the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, to establish subject matter jurisdiction to challenge EPA actions taken under section 9604 or 9606. Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir.1990);...