City of Philadelphia v. Stepan Chemical Co.

• Decision Date: 11 April 1989
• Docket Number: Civ. A. No. 81-0851,83-5493.
• Citation: 713 F. Supp. 1484
• Parties: CITY OF PHILADELPHIA, et al. v. STEPAN CHEMICAL COMPANY, et al. CITY OF PHILADELPHIA, et al. v. CONGOLEUM CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

713 F. Supp. 1484

CITY OF PHILADELPHIA, et al. v. STEPAN CHEMICAL COMPANY, et al.

CITY OF PHILADELPHIA, et al. v. CONGOLEUM CORPORATION, et al.

Civ. A. Nos. 81-0851, 83-5493.

United States District Court, E.D. Pennsylvania.

April 11, 1989.

Seymour Kurland, Frederick C. Bader, Denise D. Colliers, Mary Ellen Krober, Thomas J. Wamser, City of Philadelphia, Law Dept., for plaintiff.

Patrick T. Ryan, Bonnie Allyn Barnett, Michael J. Holston, Drinker, Biddle & Reath, Philadelphia, Pa., for Congoleum Corp.

Bertram A. Stone, Stone, Pogrund & Korey, Chicago, Ill., for Apollo Metals, Inc.

James J. Donahue, White & Williams, Philadelphia, Pa., Lee W. Shelly, Foley, Shelly & Niemann, Holmdel, N.J., for CPS Chemical Co.

Denis V. Brenan, Morgan, Lewis & Bockius, Philadelphia, Pa., for Durabond Products Co.

Michael H. Malin, White & Williams, Philadelphia, Pa., for Atlas Paint (Tepper Enterprises), Gates Engineering Co., DELCORA and Radiac Research Corp.

Clayton H. Thomas, Jr., Philadelphia, Pa., for Precision Tube Co.

John R. Howland, Howland, Hess & Guinan, Huntingdon Valley, Pa., for Chapman Indus. Finishes, Inc.

Glenn Equi, Julia Feliciano, Harvey, Pennington, Herting and Renneisen, Philadelphia, Pa., for Reading Industries, Inc.

Leonard J. Lefkort, Gilbert & Gilbert, New York City, for Radiac Research Corp.

Harry A. Rutenberg, Philadelphia, Pa., for Royal Petroleum Corp.

Christopher Gibson, Archer & Greiner, Haddonfield, N.J., for Princeton Chemical Co.

Edwin B. Barnett, Barnett & Brown, Philadelphia, Pa., for Edgar Clarke and Clarke Systems.

Antoinette Stone, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for Nathan Auritt and Riva Snyderman, Trustees of the Sarah Kate Neuman Trust.

MEMORANDUM AND ORDER

DITTER, District Judge.

Plaintiff, City of Philadelphia, has moved for partial summary judgment with regard to whether the City, as a municipality, is a "state" within the meaning of section 107(a)(4)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. § 9607(a)(4)(A) (1983 & Supp.1988).¹ The City contends that it should be considered a state for purposes of this litigation, thereby placing the burden on defendants of proving that the response costs² incurred by the City in cleaning up the hazardous substances illegally dumped by defendants at the City's Enterprise Avenue landfill³ were inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).⁴ The defendants have answered the City's motion and have themselves filed a motion in limine⁵ seeking an order that the City is not a "state" within the meaning of section 107(a)(4)(A) and, therefore, bears the burden of proving that the response costs it incurred were inconsistent with the NCP. For the reasons which follow, I will deny the City's motion for partial summary judgment and grant defendants' motion in limine.

Sections 107(a)(1) through (4) define who may be liable as a covered party under CERCLA and provide that these responsible parties may be liable for the following costs:

(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.

42 U.S.C.A. § 9607(a)(4)(A)-(a)(4)(C). As the language of the statute makes clear, actions brought by the federal government or a state to recover costs pursuant to section 107(a)(4)(A) are distinguished from those actions brought by "any other person"⁶ to recover costs pursuant to section 107(a)(4)(B). In an action by the federal government or a state pursuant to section 107(a)(4)(A), the burden is on the defendant to prove that the removal or remedial actions undertaken by the federal government or the state were inconsistent with the NCP. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 746 (8th Cir.1986), cert. denied, ___ U.S. ___, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). Thus, the cleanup activities of the federal government and the states are entitled to a presumption of consistency which the defendant must overcome. The cleanup activities of "any other person," however, are not similarly presumed to be consistent with the NCP, and a private party must prove, as an element of its prima facie case under section 107(a)(4)(B), that the costs incurred were consistent with the NCP. Northeastern Pharmaceutical, 810 F.2d at 747; Artesian Water Co. v. Gov't of New Castle County, 659 F.Supp. 1269, 1278-79 (D.Del.1987), aff'd, 851 F.2d 643 (3d Cir.1988).

In support of its argument that it should be considered a state under section 107(a)(4)(A) and thus entitled to the presumption that its cleanup activities were consistent with the NCP, the City relies upon the decision in The Mayor and Board of Alderman of the Town of Boonton v. Drew Chemical Corp., 621 F.Supp. 663 (D.N.J.1985). In Drew Chemical, town officials filed suit pursuant to sections 107(a)(4)(A) and 107(a)(4)(B) of CERCLA for recovery of costs incurred in the cleanup of a toxic waste site.⁷ 621 F.Supp. at 665. The suit also sought recovery of damages for injury to natural resources pursuant to section 107(a)(4)(C). Id. Drew Chemical moved for summary judgment on the basis that the town was not a state for purposes of recovery under either section 107(a)(4)(A) or section 107(a)(4)(C). Id. at 666. Denying the motion, the district court held that municipalities such as the town of Boonton are "within the scope of the entities Congress entrusted with standing both to recover costs for cleanup under § 9607(a)(4)(A) as well as to sue for damages for injury to destruction of, or loss of natural resources under § 9607(a)(4)(C) of CERCLA." Id. at 667. The court found that, although cities and municipalities are not within the definition of "state" under CERCLA,⁸ the use of the word "include" in the definition of the term "explicitly contemplates an expansion of the illustrative list by the courts to the fullest extent where to do so would be consistent with the remedial intent of the Act." Id. at 666. Noting that Congress "has frequently defined `state' broadly to mean the fifty states and a variety of other governmental subdivisions and entities such as municipalities," the court concluded that "it is reasonable to expand the illustrative list introduced by the word `includes' to encompass entities frequently explicitly within the meaning of the term `state' as legislatively defined." Id. at 667. The court further noted that, although section 107(f) of CERCLA provides that liability under section 107(a)(4)(C) "shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State,"<sup>9</sup> "natural resources" itself is defined in CERCLA to mean "resources belonging to ... the United States ... any State or local government, or any foreign government."<sup>10</sup> In light of CERCLA's definition of "natural resources," the court found it would be "anomalous ... to give states a cause of action for damages to natural resources owned by the State but ... to exclude cities from access to such a cause of action while expressly including resources owned by `local governments' within the scope of the protected subject of § 9607(a)(4)(C)." Id. at 666. The court further noted that the town of Boonton could be considered to be the "authorized representative" of the state under section 107(f) and, in this capacity, could recover on its natural resources claim under section 107(a)(4)(C). Id. at 668. See City of New York v. Exxon Corp., 633 F.Supp. 609, 619 (S.D.N.Y.1986) (allowing city to proceed pursuant to section 107(a)(4)(C) to recover for damage to natural resources). Considering the broad remedial purpose of CERCLA, the court thus held that the town could proceed pursuant to both section 107(a)(4)(A) and (C). Id.

Although I agree with the district court in Drew Chemical that the provisions of CERCLA must be liberally construed so as to effectuate the statute's broad remedial purpose, nonetheless, with regard to the burden of proving consistency with the NCP, I cannot construe section 107(a)(4)(A) to allow a municipality to proceed as a state when there is no support in either the statutory language or the legislative history of CERCLA for such a result. In attempting to discern the intent of Congress in enacting a particular statutory section, I must examine the language of the statute and, if there is ambiguity, the policy behind it.¹¹ The starting point is always the plain meaning of the words used and plainly, CERCLA's definition of the term "state" does not include the word "municipality." The entities that are included — states, the District of Columbia, Puerto Rico, Guam, Samoa, the Virgin Islands, the Marianas, and United States territories and possessions — differ so vastly from villages, towns, boroughs, townships, counties, and cities as to be words of exclusion. Even accepting the broad remedial purpose of CERCLA, there is simply nothing in the statute to suggest that Congress intended to allow municipalities to recover their response costs by proceeding under section 107(a)(4)(A) rather than by proceeding as a private party under section 107(a)(4)(B).¹² In Ohio Manufacturers' Ass'n v. City of Akron, 801 F.2d 824 (6th Cir.1986), plaintiffs argued that an ordinance passed by the city of Akron regulating hazardous and toxic substances in the workplace was preempted by the federal Occupational Safety and Health Act (OSH Act) which expressly preempts such regulation by states. The plaintiffs contended, relying on Drew Chemical, that by using "includes" in defining "state...