NL Industries, Inc. v. Kaplan, 85-2783
| Citation | 792 F.2d 896 |
| Decision Date | 20 June 1986 |
| Docket Number | No. 85-2783,85-2783 |
| Parties | , 16 Envtl. L. Rep. 20,749 NL INDUSTRIES, INC., Petitioner-Appellant, v. Stuart M. KAPLAN, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Jennifer L. Machlin, Orrick, Herrington & Sutcliffe, San Francisco, Cal., for petitioner-appellant.
John D. Hoffman, Ellman, Burke & Cassidy, San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE, KENNEDY and FARRIS, Circuit Judges.
NL Industries, Inc. (NL Industries) appeals from the district court's denial of its motion to dismiss Kaplan's action for failure to state a claim upon which relief can be granted. This appeal concerns the pleading requirements of a private cause of action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9607(a). We have jurisdiction under 28 U.S.C. Sec. 1292(b), and we affirm.
Kaplan's complaint alleges that Kaplan is the court-appointed receiver for 2222 Ltd. (the partnership), a California limited partnership that owns a parcel of real property in San Francisco (the parcel). The partnership acquired the parcel in February 1980 for the purpose of developing a condominium project. It later learned that the parcel was severely contaminated with deposits of various hazardous substances. State and local officials, acting pursuant to California hazardous waste control and water quality laws and other state and local statutes, regulations, and ordinances, have required Kaplan, as receiver for the partnership, to expend approximately $1,200,000 in detecting, identifying, controlling, and disposing of these hazardous substances.
From approximately 1933 to 1971, NL Industries owned the parcel and operated on it facilities for the production of paint, varnish, shellac, lacquer, and related products. From before 1900 until 1933, two corporations owned, controlled, and directed by NL Industries owned the parcel and conducted similar production operations. During these two periods, NL Industries and the two corporations owned by it deposited the hazardous substances that contaminate the parcel.
Kaplan sued NL Industries in district court under CERCLA Sec. 107(a), 42 U.S.C. Sec. 9607(a), to recover the partnership's costs of responding to the hazardous substances. The district court issued an order denying NL Industries' motion to dismiss for failure to state a claim upon which relief could be granted. The district court certified its order for immediate appeal, and we granted permission to appeal. See 28 U.S.C. Sec. 1292(b).
We review de novo the district court's denial of NL Industries' motion to dismiss for failure to state a claim upon which relief can be granted. See Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984). We must accept all material allegations in the complaint as true and construe them in the light most favorable to Kaplan. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is warranted only if it appears to a certainty that Kaplan would be entitled to no relief under any state of facts that could be proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982).
Section 107(a) of CERCLA states in part:
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section--
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, ... shall be liable for--
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan; [and]
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan....
42 U.S.C. Sec. 9607(a)(2)(A), (B).
Section 107(a)(2)(B) expressly creates a private cause of action for damages. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890 (9th Cir.1986) (Wickland ). Pursuant to this section, Kaplan has alleged that NL Industries owned the parcel at the time that hazardous substances were deposited on it, and that Kaplan has incurred "necessary costs of response ... consistent with the national contingency plan."
NL Industries offers three arguments in support of its motion to dismiss. First, it contends that a private party cannot incur response costs in a manner "consistent with the national contingency plan" unless it acts pursuant to a cleanup program approved by a "lead agency," as defined in 40 C.F.R. Sec. 300.6 (1985). We agree with NL Industries that we should look to the national contingency plan that was in effect at the time that Kaplan allegedly incurred response costs, see 40 C.F.R. Secs. 300.1-.86 (1985), rather than to the current...
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