City of Philadelphia v. Stepan Chemical Co.
| Citation | 544 F. Supp. 1135 |
| Decision Date | 04 August 1982 |
| Docket Number | Civ. A. No. 81-851. |
| Parties | CITY OF PHILADELPHIA, Plaintiff, v. STEPAN CHEMICAL COMPANY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Frank M. Thomas, Jr., Deputy City Sol., Philadelphia, Pa., for plaintiff.
Bertram A. Stone, Stone, Pogrund & Korey, Chicago, Ill., for defendant Apollo Metals, Inc.
Mark D. Turetsky, Miller & Turetsky, Norristown, Pa., for defendant Armstrong Corp.
Andrew N. Grass, Jr., Todd B. Sollis, Windels, Marx, Davies & Ives, New York City, for defendant Atlas Minerals & Chemicals, Inc.
Joseph F. Van Horn, Swartz, Campbell & Detweiler, Philadelphia, Pa., for defendant Bank of Delaware.
Steven T. Stern, Braemer & Kessler, Philadelphia, Pa., for defendant Brind Leasing Co.
John R. Howland, Howland, Hess & Guinan, Huntingdon Valley, Pa., for defendant Chapman Industrial Finishes, Inc.
Patrick T. Ryan, J. Freedley Hunsicker, Jr., Cynthia J. Giles, Drinker, Biddle & Reath, Philadelphia, Pa., for defendants Congoleum Corp., UMC Industries, Inc. and Zallea Brother, Inc.
Denis V. Brenan, Richard F. McMeniman, Morgan, Lewis & Bockius, Philadelphia, Pa., for defendants Allied Aviation Service Co., J. L. Clark Mfg. Co., Sonoco Products Co., U. S. Gypsum Co. and Durabond Products Co.
Michael L. Rodburg, Murry D. Brochin, Roseland, N. J., for defendant CPS Chemical Co.
Richard C. Rizzo, Bradford F. Whitman, Dechert, Price & Rhoads, Philadelphia, Pa., for defendant Delmarva Power & Light Co.
Henry P. Stonelake, Philadelphia, Pa., for defendant Diversified Printing Corp.
Albert L. Bricklin, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for Grow Group, Inc.
Ronald I. Rosen, Michael Borish, Tabas & Furlong, Philadelphia, Pa., for defendant Pennex Products Co.
Clayton H. Thomas, Jr., Philadelphia, Pa., for defendant Precision Tube Co.
Leonard J. Lefkort, Gilbert & Gilbert, New York City, for defendant Radiac Research Corp.
Michael H. Malin, Jerrold P. Anders, White & Williams, Philadelphia, Pa., for defendants Radiac Research Corp., Delaware County Regional Water, Control Authority (Delcora) and Gates Engineering Co.
John P. McKelligott, Harvey, Pennington, Herting & Renneisen, Philadelphia, Pa., for defendant Reading Industries, Inc.
Thomas P. Grace, LaBrum & Doak, Philadelphia, Pa., for defendants Seton Co. and Wilmington Chemical Corp.
James W. Gladden, Jr., Priscilla Weaver, Mayer, Brown & Platt, Chicago, Ill., for defendant Stepan Chemical Co. David Richman, John A. Guernsey, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for defendants Sun Chemical Corp. and CPS Chemical Co.
Donald K. Joseph, Marc E. Gold, Barry M. Klayman, Wolf, Block, Schorr & SolisCohen, Philadelphia, Pa., for defendants Sybron Corp. and Ionac Chemical Co.
Henry H. Janssen, Warren L. Simpson, Jr., Rawle & Henderson, Philadelphia, Pa., for defendants Thomas & Betts Corp. and T&B/Ansley Corp.
John W. Morris, Pierson, Cameron & Morris, P. C., Philadelphia, Pa., for defendant Wright Const. Co.
In this action, the City of Philadelphia ("the City") seeks to recover clean-up costs and consequential damages which resulted from the illegal dumping on city property of industrial waste generated by the defendants. The suit is predicated upon numerous federal and state environmental statutes as well as several common law theories of recovery. Defendants have filed a comprehensive motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) asserting that the statutes upon which the City relies do not support its claim and that, as a matter of law, they cannot be held liable on any of the common law causes of action. For the reasons that follow, the motion will be granted in part and denied in part.
"In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Chuy v. National Football League Players' Association, 495 F.Supp. 137, 138 (E.D.Pa.1980), quoting 5 C. Wright and A. Miller, Federal Practice and Procedure § 1368, at 690 (1969). A review of the pleadings in light of this standard reveals the following factual setting. Defendants are a number of concerns which generate industrial waste as a byproduct of their operations. At various times, each defendant contracted with either Lightman Drum Company ("Lightman") or ABM Disposal Service Company ("ABM") to haul and dispose of the waste. During 1974 and 1975, ABM and Lightman illegally dumped the waste at a landfill on Enterprise Avenue in Southwest Philadelphia ("the Enterprise site") which was owned by the City and intended for use only by the City. Access to the Enterprise site was gained by bribing two City employees. The existence of substantial quantities of waste on the Enterprise site was discovered by City officials in 1979. Criminal convictions were obtained against the employees who accepted the bribes and against Lightman and its president, Jerome Lightman. Charges are pending against the president of ABM, Ellis Barnhouse, who is presently a fugitive.1
The City alleges that as a result of this illegal dumping, the soil at the Enterprise site has been contaminated and the adjacent Delaware River and groundwater underlying the site have been polluted. This has obligated the City to commence a comprehensive clean up program having an estimated cost of $10 million. In addition, a sewage sludge recycling center which is scheduled to be built on the Enterprise site has been postponed indefinitely, a delay which will increase construction costs by about $20 million. The City filed a nine-count complaint seeking to recover $30 million in damages as well as civil penalties. The complaint sets forth the following claims for relief: (1) liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA); (2) the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a); (3) the federal common law of nuisance; (4) common law strict liability; (5) the Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.101 et seq. (the SWMA); (6) the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq. (7) common law trespass and nuisance; (8) common law negligence; and (9) various provisions of the Philadelphia Code. Jurisdiction is based upon 28 U.S.C. § 1331, 42 U.S.C. § 9613(b) (), and 33 U.S.C. § 1365(a) (). Jurisdiction over the state claims is pendent.
The City's CERCLA claim is predicated upon the statute's liability provision, 42 U.S.C. § 9607(a).2 That provision designates three categories of "responsible persons." They are (1) present and former owners of hazardous substances disposal sites; (2) transporters of hazardous substances, and (3) those who arrange for the transport or disposal of hazardous substances (normally generators).3 These responsible persons are liable4 for three types of costs which are incurred as the result of a release or threatened release5 of the hazardous substances: (1) governmental response costs, (2) private response costs incurred "by any other person" consistent with the national contingency plan,6 and (3) damage to natural resources. It can readily be seen that the three categories of "responsible persons" set forth in 42 U.S.C. § 9607(a)(1)-(4) encompass all of the principal actors in this litigation—the City owns and operates the landfill, defendants generated the hazardous substances and contracted for their disposal, and ABM and Lightman acted as transporters. Thus, had the federal or state government undertaken to clean up the Enterprise site, all of these parties arguably would be liable for the cost of removal or other remedial action under 42 U.S.C. § 9607(a)(4)(A).
However, that did not occur. Instead, the City, itself possibly subject to liability for governmental response costs, undertook the clean up and now contends that defendants are liable for its "necessary costs of response" under 42 U.S.C. § 9607(a)(4)(B). It is this anomaly which gives rise to defendants' primary argument in seeking judgment on the City's CERCLA claim. They contend that the term "any other person" as used in 42 U.S.C. § 9607(a)(4)(B) does not include a party which itself is subject to liability under the act. Although the statute's language does not explicitly support this construction, defendants assert that it is the only interpretation consistent with the act's structure and with the logical functioning of its many interrelated provisions. Specifically, they point to several inconsistencies in the administration of the act's funding provisions7 which would result if the City may bring this action. Under 42 U.S.C. § 9611(a), the president is authorized to use money in the fund for payment of necessary response costs "incurred by any other person as a result of carrying out the national contingency plan ...." Defendants contend that if the term "any other person" includes those who are subject to liability under the act, responsible persons could claim against the fund and against other responsible parties. Because the government has subrogation rights for payments made from the fund, see 42 U.S.C. § 9612(c)(1), the City's interpretation would assertedly result in a merry go round of litigation with the government suing a responsible person which in turn could sue other responsible persons which in turn could claim against the fund and so forth. Defendants also point to the claims procedure under 42 U.S.C. § 9612 as demonstrating the untenability of the City's position as a plaintiff. Under this section, a party making claim...
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