Ambrogi v. Gould, Inc., Civ. No. 88-1205

Decision Date09 January 1991
Docket NumberCiv. No. 88-1205,89-0576.
Citation750 F. Supp. 1233
PartiesAdam AMBROGI, et al., Plaintiffs, v. GOULD, INC., Defendant/Third Party Plaintiff, v. AMERICAN SCRAP COMPANY, et al., Third Party Defendants. John TOOLE, et al., Plaintiffs, v. GOULD, INC., et al., Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

Thomas J. Ratchford, Jr., Diane F. Beermer, Minora, Minora and Ratchford, Scranton, Pa., Gerald J. Williams, Williams & Cuker, Philadelphia, Pa., for plaintiffs.

G. Wayne Renneisen, Mark A. Lockett, John D. Lemonick, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for defendant/third party plaintiff Gould, Inc.

Joel R. Burcat, Linda J. Shorey, Kirkpatrick & Lockhart, Harrisburg, Pa., for third party defendant American Scrap Co., Inc.

Irwin Schneider, O'Malley, Harris & Schneider, P.C., Scranton, Pa., for third party defendant Leonard Gorelick.

Gerald Gornish, Barry M. Klayman, Wolf, Block, Schoor & Solis-Cohen, Philadelphia, Pa., for third party defendant Lawrence Fiegleman.

CONABOY, Chief Judge.

MEMORANDUM AND ORDER
                  I. Introduction
                     A. Factual Background
                     B. Procedural Background
                 II. CERCLA ÔÇö The Superfund Act
                     A. CERCLA's Basic Purposes
                     B. Application to Private Cost Recovery Suits
                     C. Response Costs
                III. Discussion
                     A. Standard of Review
                        1. A Motion to Dismiss Under Fed.R.Civ.P. 12
                        2. A Motion for Summary Judgment Under Fed.R.Civ.P. 56
                     B. Specific Response Costs Alleged
                        1. Non-Recoverable Costs
                           (a) Medical Monitoring
                               (i)  Arguments Presented
                               (ii) Analysis of the Court
                           (b) Organizational Expenses
                           (c) Conclusion
                        2. Application of the National Contingency Plan
                           (a) Sufficiency of Pleadings
                           (b) Consistency with the NCP
                               (i)  Prima Facie Element
                               (ii) Application
                           (c) Necessary Costs
                           (d) Conclusion
                 IV. Conclusion
                
I Introduction

This is the first in a series of memoranda this Court is prepared to issue on litigation stemming from the clean-up efforts at the Marjol/Gould Battery plant located in Throop, Pennsylvania. This particular memorandum concerns the application of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law No. 99-499,1 to the claims in Ambrogi, et al. v. Gould, Civil No. 88-1205 (M.D.Pa. filed August 9, 1988) and Toole, et al. v. Gould, Inc., et al., Civ. No. 89-0576 (M.D.Pa. filed April 21, 1989).2

For the reasons stated below, the Court finds that the response costs requested by the Plaintiffs, including medical monitoring, medical surveillance, transportation expenses, attendance at public meetings, the loss of beneficial use of their gardens and property, and participation in citizens associations and groups formed to aid in the investigation and cleanup efforts, are not recoverable under CERCLA. Those costs that are generally permitted, such as air, water, and soil testing, costs of cleanup, and investigative expenses, are not recoverable in these cases, however, since a required prerequisite, ÔÇö i.e., consistency with the National Contingency Plan ("NCP"), has not been demonstrated.

A. Factual Background

From 1962 through 1982, a battery crushing and lead processing facility was operated by the Marjol Battery and Equipment Company ("Marjol") in Throop, Pennsylvania. In May, 1980, Gould, Inc. ("Gould") purchased the facility from Mr. Lawrence Fiegleman, former owner of Marjol. For a period of two years, beginning in May 1980 and ending in April 1982, Gould operated the processing plant.

During both Marjol's and Gould's tenure, approximately forty-three (43) acres of land were utilized in connection with the operations at the plant. This area, referred to as the "Site" by the Environmental Protection Agency ("EPA"), contained a landfill in the southwest corner made up of an estimated 65,600 cubic yards of contaminated soil, broken battery casings and crushed drums. According to EPA documents, the southern end of the landfill was described as being "severely eroded ... with piles of battery casings and lead originating from operations at the Site were evident throughout the length of an erosion gully which extended through the landfill and eventually drained into the Lackawanna River." Doc. No. 89, Exhibit A at  3.

Upon determining "that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from the facility", the EPA and Gould entered into a consent agreement and administrative order in April of 1982. See Doc. No. 89, Exhibit A at  13.3

The terms of the agreement pertain to the clean-up of the area surrounding the Marjol/Gould facility and certain of Plaintiffs' contaminated properties located near the plant. Under the administrative order, Gould is responsible for conducting a comprehensive investigation of its property and the surrounding areas and to address immediate response measures, if any, required by applicable local, state, and federal laws and regulations. See Document No. 89, Exhibit A at 2. Since entering into the consent agreement, Gould has conducted an extensive cleanup project at the site and on various adjacent properties. Doc. No. 89 at 1-2, 25-27.

B. Procedural Background

Currently before the Court are several lawsuits filed by neighbors of the battery processing plant. The focus of their litigation centers on the allegation that the Plaintiffs were exposed to excessively high levels of lead which emanated from the Gould facility. As a result of the presence of this hazardous lead waste, and its migration from the plant, Plaintiffs' allege that the surrounding environment, including the soil, air, and water, has been contaminated. The Plaintiffs maintain that they have suffered personal and property damages from the actions of the Defendants, including, inter alia, the diminished value of their respective properties; inconvenience and discomfort; loss and impairment of the beneficial use of their homes and properties; and a fear of and/or an increased risk of harm in terms of susceptibility to "lead poisoning" and various medical conditions. Ambrogi, Doc. No. 1 at  83-99; Toole, Doc. No. 1 at  33-48.

In Count I of both the Ambrogi and Toole complaints, the respective Plaintiffs invoke as their first cause of action the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. žž 9602 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986, Public Law No. 99-499. The relief sought under CERCLA is for "response costs" allegedly incurred, or which will be incurred, for monitoring, assessing, and evaluating the release or threat of release of hazardous substances near the Marjol/Gould plant.

In response to these claims, several objections have been raised by the Defendants prompting Gould to file a motion for partial summary judgment with supplements. Counsel for Defendant Fiegleman has joined in the Gould motion and Defendants American Scrap Company, Inc. and Leonard Gorlick a/k/a as Capital Scrap Yard have filed their own motions to dismiss under Fed.R.Civ.P. 12. These matters have been fully briefed and are ripe for our consideration.

II

CERCLA

The Superfund Act

A. CERCLA's Basic Purposes

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. žž 9601-57, popularly known as the Superfund Act, was enacted by Congress to provide the nation with a comprehensive mechanism for the cleanup of inactive hazardous waste sites, hazardous spills and the release of hazardous substances into the environment. See Prudential Ins. Co. of America v. U.S. Gypsum, 711 F.Supp. 1244, 1251 (D.N.J.1989) and cases cited therein; See also R. Stoll, Environmental Law Handbook ž 1.1 at 75 (10th ed. 1989). One of the primary purposes of the Act is to facilitate government cleanup of hazardous waste discharge and impede future releases in order to prevent, minimize, or mitigate damage to the public health, welfare, and to the environment. Exxon Corp. v. Hunt, 475 U.S. 355, 360, 106 S.Ct. 1103, 1108, 89 L.Ed.2d 364 (1986); 42 U.S.C. ž 9601(23).

To accomplish this task, the statutory structure of CERCLA provides for the recovery of "response costs" incurred by basically two (2) groups:

(1) The Government ÔÇö this funding option allows for governmental agencies to perform remedial work with Superfund dollars, and then sue responsible parties for reimbursement under the "cost recovery" authority of CERCLA ž 107. The EPA may also seek through negotiations to persuade responsible parties to perform and pay for any or all stages of the remedial action at a site;4 and
(2) An Other Person ÔÇö this group would include any individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, or governmental body that has incurred "response costs" in the cleanup effort. A claimant must first seek to collect from the responsible party and then, if unsuccessful, obtain the response costs by a private cost recovery suit in court or from the Hazardous Substance Response Trust Fund (HSR Fund) if applicable.

42 U.S.C. ž 9606 and ž 9607(a)(4)(A) and (B); Prudential, supra; R. Stoll, Environmental Law Handbook, ž 6.1 at 97.

Each of these groups is statutorily required to work within the ambits of the National Contingency Plan ("NCP") in recouping any response costs. See ž 105 of CERCLA, codified at 42 U.S.C. ž 9605. The National Contingency Plan establishes procedures, criteria, and responsibilities for conducting response actions at Superfund sites. 42 U.S.C. ž 9605; see 40 C.F.R. Part 30. Used in conjunction with the...

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