Brewer v. Ravan, 1-86-0061.

• Decision Date: 29 February 1988
• Docket Number: No. 1-86-0061.,1-86-0061.
• Citation: 680 F. Supp. 1176
• Parties: Joyce BREWER, et al. v. Jack E. RAVAN, Regional Administrator of the Environmental Protection Agency, et al.
• Court: U.S. District Court — Middle District of Tennessee

680 F. Supp. 1176

Joyce BREWER, et al. v. Jack E. RAVAN, Regional Administrator of the Environmental Protection Agency, et al.

No. 1-86-0061.

United States District Court, M.D. Tennessee, Columbia Division.

February 29, 1988.

COPYRIGHT MATERIAL OMITTED

Lee England, Lawrenceburg, Tenn., and Albert J. Slap, Gerald J. Williams, Slap Williams & Cuker, Philadelphia, Pa., Mark R. Cuker, Ronald F. Brien, Lorraine J. Zwolak, Denise J. Baker, for plaintiffs.

John L. Chambers, Chambers Wyckoff & Kinnard, Nashville, Tenn., J. Kevin Buster, King & Spalding, Atlanta, Ga., for Duracell.

M. Clark Spoden, Dearborn & Ewing, Nashville, Tenn., Leonard J. Rivkin, Joseph J. Ortego, Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., for Emhart.

MEMORANDUM

WISEMAN, Chief Judge.

This action was brought by plaintiffs, former employees of a capacitor manufacturing plant located in Waynesboro, Tennessee (Waynesboro Plant) and their families, against defendants Jack E. Ravan, Regional Administrator of the Environmental Protection Agency (EPA), Emhart Industries, Inc. (Emhart), and Duracell International, Inc. (Duracell). Plaintiffs' complaint alleges violations of four distinct federal environmental laws: (1) the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq.; (2) the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq.; (3) the Federal Water Pollution Control or Clean Water Act of 1977 (CWA), 33 U.S.C. § 1251 et seq.; and (4) the Toxic Substances Control Act of 1976 (TSCA), 15 U.S.C. §§ 2601 et seq. In their complaint, plaintiffs seek declaratory and extensive injunctive relief, as well as the imposition of civil penalties.

Defendants Emhart and Duracell have moved, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss certain portions of plaintiffs' complaint for lack of subject matter jurisdiction and for failing to state a claim upon which relief can be granted.¹ For the following reasons, defendants' motions are granted in part and denied in part.

Legal Discussion

I. CERCLA Claim

Plaintiffs' Second Cause of Action alleges that defendants Emhart and Duracell are liable to plaintiffs under 42 U.S.C. §§ 9607(a)(1)(B) and (a)(2)(B) respectively for necessary response costs incurred by plaintiffs as a result of defendants' activities. Plaintiffs also seek both civil penalties and injunctive relief. Defendant Emhart has moved to dismiss plaintiffs' CERCLA claim in its entirety, contending: (1) that plaintiffs have not incurred any recoverable "response costs" under CERCLA; and (2) that plaintiffs are not entitled to either civil penalties or injunctive relief under section 9607(a).

A. Response Costs

CERCLA's primary purpose is "to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for the hazardous wastes." Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985). Given this purpose and the statutory language of CERCLA, courts have held almost unanimously that section 9607(a)(1-4)(B) creates a private cause of action against section 9607(a) responsible parties for the recovery of "necessary costs of response incurred ... consistent with the National Contingency Plan." See id.

In paragraphs 15 and 72 of their complaint, plaintiffs allege that they "have and will in the future incur" necessary response costs consistent with the national contingency plan "as a result of a release and/or threatened release of PCBs and other hazardous substances from the Waynesboro Plant." Plaintiffs' Complaint at 6, 15. Plaintiffs further allege, in paragraph 63 of their complaint, that they "have been or may be forced to perform, inter alia, soil testing, water monitoring, and medical tests and medical screening." Id. at 14. Defendant Emhart insists that paragraphs 15 and 72 state nothing more than unsupported legal conclusions and that paragraph 63, because it is pled in the disjunctive, "sheds no light on the type of costs incurred by plaintiffs." Memorandum of Emhart in Support of Motion to Dismiss at 21 n. 8. Emhart further contends that any expenses incurred by plaintiffs for medical testing or screening are not compensable "response costs" under section 9607(a).

Recent case law clearly indicates that a private citizen seeking to recover expenses or obtain declaratory relief under section 9607(a) "must affirmatively demonstrate that it has incurred" at least some necessary response costs consistent with the national contingency plan. See Chaplin v. Exxon Corp., 25 E.R.C. 2009, 2013 (S.D. Tex.1986) Available on WESTLAW, 1986 WL 13130 (emphasis added); Levin Metals Corp. v. Parr-Richmond Terminal Co., 608 F.Supp. 1272, 1275 (N.D.Cal.1985). Because CERCLA does not define the term "necessary costs of response," however, courts have had considerable difficulty in applying section 9607(a). See, e.g., Jones v. Inmont Corp., 584 F.Supp. 1425, 1429-30 (S.D.Ohio 1984) (noting that "response costs" is not defined by CERCLA and that "response" is defined only in a most indirect and ambiguous manner).

Although a comprehensive definition of "necessary costs of response" is somewhat elusive, most courts agree that on-site testing and investigative costs are recoverable under section 9607(a). See Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 887, 892 (9th Cir.1986); City of New York v. Exxon Corp., 633 F.Supp. 609, 617-18 (S.D.N.Y.1986); Velsicol Chemical Corp. v. Reilly Tar & Chemical Corp., 21 E.R.C. 2118, 2121-22 (E.D.Tenn. 1984). To the extent that plaintiffs allege that they have conducted onsite soil testing and water monitoring, therefore, they state a cognizable claim under section 9607(a).

Emhart contends, however, that expenses incurred as a result of "medical testing and medical screening" are not recoverable response costs under CERCLA. The Court agrees with Emhart that CERCLA's legislative history clearly indicates that medical expenses incurred in the treatment of personal injuries or disease caused by an unlawful release or discharge of hazardous substances are not recoverable under section 9607(a). See Chaplin, 25 E.R.C. at 2011-12 (discussing legislative history of CERCLA on this issue); Artesian Water Co. v. Government of New Castle County, 605 F.Supp. 1348, 1356 n. 10 (D.Del.1985). To the extent that plaintiffs seek to recover the cost of medical testing and screening conducted to assess the effect of the release or discharge on public health or to identify potential public health problems presented by the release, however, they present a cognizable claim under section 9607(a). See Inmont Corp., 584 F.Supp. at 1429-30; Adams v. Republic Steel Corp., 621 F.Supp. 370, 376 (W.D.Tenn.1985) (citing Inmont). See also Velsicol, 21 E.R.C. at 2121 (finding if "difficult to see how costs of identifying and determining how to allay the environmental problem presented" are not recoverable under section 9607(a)). Public health related medical tests and screening clearly are necessary to "monitor, assess, or evaluate a release" and, therefore, constitute "removal" under section 9601(23). See 42 U.S.C. § 9601(23). Because the term "response" is defined in section 9601(25) to mean, in part, "remove or removal," costs incurred as a result of conducting such tests and screening are recoverable response costs under section 9607(a). See Inmont Corp., 584 F.Supp. at 1429-30. Although paragraph 63 of plaintiffs' complaint is pled in the disjunctive and it is unclear whether the medical tests and screening allegedly conducted by plaintiffs were public health related, at this early stage of the proceedings, the Court cannot say that it appears beyond doubt that plaintiffs can prove no set of facts in support of their CERCLA claim. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). For these reasons, plaintiffs' claim for response costs under CERCLA should not be dismissed.²

B. Appropriate Relief Under Section 9607(a)

Assuming that plaintiffs have stated a cognizable claim under section 9607(a), defendant Emhart contends that plaintiffs are not entitled to either civil penalties or injunctive relief. As noted earlier in this opinion, it is well established that section 9607(a) creates a private cause of action to recover necessary costs of response. 42 U.S.C. § 9607(a)(1-4)(B) (1983). See also Walls, 761 F.2d at 317-18. Prior to amendment in 1986, however, CERCLA did not authorize civil penalties or injunctive relief in favor of private litigants. See 42 U.S.C. § 9659(c) (Supp.1987) (effective October 17, 1986). See generally V. Yannacone, Jr., B. Cohen & S. Davison, Environmental Rights and Remedies § 5:29 at 930-31 (Supp.1987).

Despite CERCLA's clear and unambiguous pre-amendment statutory language, plaintiffs urge the Court to interpret section 9607(a) liberally to permit recovery of civil penalties and injunctive relief. To do so, however, would be to strain beyond reason the language, scheme, and legislative history of the statute. See State of New York v. Shore Realty Corp., 759 F.2d 1032, 1049-50 (2d Cir.1985); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 21 E.R.C. 1108, 1115-17 (C.D.Cal.1984) (both holding that injunctive relief unavailable under section 9607(a)).³ See also 42 U.S.C. §§ 9606(b); 9609 (federal government may seek civil penalties only in two narrow circumstances — for violation of section 106 abatement order and for failure to comply with requirements of section 9608). Therefore, to the extent plaintiffs' complaint seeks civil penalties and injunctive relief under CERCLA, it must be dismissed.

II. RCRA Claim

Plaintiffs' Third Cause of Action alleges that defendants Emhart and Duracell:

(1) stored and disposed of and continue to store and dispose of hazardous waste without a RCRA permit in violation of 42 U.S.C. § 6925;

(2) engaged in and continue to engage in solid waste management practices which constitute

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