City of Philadelphia v. Stepan Chemical Co.

• Decision Date: 25 September 1990
• Docket Number: Civ. A. No. 81-0851,83-5493.
• Citation: 748 F. Supp. 283
• Parties: CITY OF PHILADELPHIA v. STEPAN CHEMICAL COMPANY, et al. CITY OF PHILADELPHIA v. CONGOLEUM CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

748 F. Supp. 283

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

CITY OF PHILADELPHIA v. CONGOLEUM CORPORATION, et al.

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

United States District Court, E.D. Pennsylvania.

September 25, 1990.

Thomas J. Wamser, Joy J. Bernstein, Deputy City Solicitors, Philadelphia, Pa., for plaintiff.

Denis V. Brenan, John F. Stillmun, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

DITTER, District Judge.

Before me is the City of Philadelphia's motion for partial summary judgment and defendants' cross-motion for summary judgment. Plaintiff seeks a judgment stating that as a matter of law, it has met its burden under Section 107(a)(2)(B), of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(2)(B), of showing that the costs to remedy the city-owned Enterprise Avenue landfill were incurred consistent with the national contingency plan ("NCP") in effect at the time its costs were incurred. Defendants oppose the motion and instead seek a judgment that they are not liable for response costs incurred by plaintiff before the effective date of CERCLA, 42 U.S.C. § 9601 et seq., on December 11, 1980, and that all response costs incurred after that date did not comply with the applicable NCP. As an initial matter, the parties ask that I resolve the question of which of two NCP's promulgated by the Environmental Protection Agency ("EPA") between 1973 and 1982 to identify, contain, disperse, and remove hazardous substances from the environment applies to the various stages of remediation conducted by plaintiff between 1979 and 1985.

For the reasons that follow, I find that Congress intended to impose liability retroactively under CERCLA on responsible parties for pre-enactment response costs. I further find that the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 1510.1 et seq. ("1973 NCP"), promulgated by the EPA in 1973 in accordance with section 311(c)(2) of the Federal Water Pollution Control Act Amendments ("The Clean Water Act"), 33 U.S.C. § 1321(c)(2), provides the standard against which plaintiff's remediation activities up until July 16, 1982, should be measured.¹ Plaintiff's activities on and after July 16, 1982, will be evaluated in accordance with the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.1 et seq. ("1982 NCP"), promulgated by the EPA on that date. As a matter of law, I conclude that the city's cleanup activities before July 16, 1982, were consistent with the 1973 NCP. In all other respects, I will deny the parties' cross-motions for summary judgment.

The facts of this case have been fully described in an earlier opinion in this case, City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135 (E.D.Pa.1982). Briefly, the city owned and operated a landfill on Enterprise Avenue. Each defendant contracted with either Lightman Drum Company or ABM Disposal Company to haul and dispose of hazardous industrial waste. During 1974 and 1975, Lightman and ABM gained access to the Enterprise Avenue landfill by bribing two city employees hired to guard the site and illegally dumped hazardous waste there. The city discovered the illegal dumping in 1979 and undertook to clean up the waste at its own expense. This lawsuit was subsequently brought to recover the city's response costs² and other consequential damages from defendants.

I. CERCLA and the National Contingency Plans

CERCLA was enacted in 1980 to provide for "the cleanup of inactive hazardous waste disposal sites." Preamble to CERCLA, Pub.L. No. 96-510, 94 Stat. 2767. The House Committee on Interstate and Foreign Commerce reported that its intent in CERCLA was "to initiate and establish a comprehensive response and financing mechanism to abate and control the vast problems associated with abandoned and inactive hazardous waste disposal sites." H.R.Rep. No. 90-1016, 96th Cong., 2d Sess. 22, reprinted in 1980 U.S.Code Cong. & Admin.News 6119, 6125. In large part, congressional concerns over the magnitude of the hazardous waste disposal problem, its environmental consequences, the burdens it imposes — both health and financial—on the innocent public, and the inadequacies of existing law to control the danger, led to the promulgation of CERCLA. See id. at 6120.

Pursuant to section 107(a)(4)(B) of CERCLA, 42 U.S.C. § 9607(a)(4)(B), the city's cleanup activities must be consistent with specific guidelines published by the EPA, known as the national contingency plan. Cost recovery for activities deemed inconsistent with the EPA's guidelines is foreclosed by section 107(a)(4)(B).³ In a recent opinion, I held that the city is not a "state" within the meaning of CERCLA, and therefore is not entitled to the presumption accorded states and the federal government under CERCLA section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), that its activities were consistent with the NCP. Rather, the city, as "any other person" under section 107(a)(4)(B) of CERCLA, has the burden of proving that its response costs were consistent with the applicable plan. See City of Philadelphia v. Stepan Chemical Co., 713 F.Supp. 1484 (E.D.Pa. 1989).

Section 105 of CERCLA required the President to promulgate a national contingency plan within 180 days that would include, at a minimum,

(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases ...

(3) methods and criteria for determining the appropriate extent of removal, remedy, and other measures ...

....

(7) means of assuring that remedial measures are cost effective over the period of potential exposure....

42 U.S.C. § 9605(a). Congress intended for the President to revise and replace the 1973 NCP. See 126 Cong.Rec. S14965 (daily ed. Nov. 24, 1980) (remarks of Sen. Randolph); 40 C.F.R. § 300.2 (section 2 of the 1982 NCP). In Executive Order 12316, 42 FR 42237 (Aug. 20, 1981), the President delegated to the EPA the responsibility for the promulgation of the 1982 NCP and all other functions vested in the President under section 105 of CERCLA. See id. The EPA did not abide by the 180 day deadline established by Congress, and did not publish the 1982 amendments to the 1973 NCP until July 16, 1982. The 1982 NCP is codified at 40 C.F.R. § 300.1 et seq. Following a congressional review of sixty calendar days of continuous session as provided for in section 305 of CERCLA, 42 U.S.C. § 9655, the 1982 NCP was finally enacted on December 10, 1982.

Although the 1973 NCP was designed primarily to address the emergency cleanup of oil spills on the navigable waters and the high seas, the 1982 NCP did not alter the basic structure of the 1973 NCP. The 1982 NCP maintains the national and regional response teams established by the 1973 NCP to carry out the plan's mandates. 40 C.F.R. §§ 300.31-300.37. As with the 1973 NCP, the 1982 NCP stresses notification to the federal government of any hazardous discharge, and subsequent coordination between the responsible federal agency, the state, and the entity overseeing the cleanup efforts. Id. at §§ 300.22, 300.63. Once a discharge is reported, like the 1973 NCP, the 1982 NCP requires the federal agency to evaluate the extent of the problem, possible solutions, and the existence of other entities "ready, willing and able to undertake a proper response." Id. at § 300.64. Similarly, both the 1973 NCP and the 1982 NCP provide for cost recovery for removal actions and damages. 40 C.F.R. § 1510.55; 40 C.F.R. §§ 300.54, 300.69. The major difference between the 1973 NCP and the 1982 NCP is in the latter's delineation of the specific steps to be taken in evaluating and responding to a particular release problem. The 1973 NCP is silent as to the means to be employed by the lead agency in developing a response plan. The 1982 NCP, on the other hand, sets forth specific studies which must be conducted and factors which the lead agency must consider in formulating a response. Importantly, the 1982 NCP, unlike the 1973 NCP, requires the development and analysis of various alternatives for remediation. The goal of the process as described in the 1982 NCP is to select "the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare, or the environment." 40 C.F.R. § 300.68(j).⁴

II. The City's Cleanup Activities

"Phase I" of the city's remediation efforts began in early 1979 when the city performed an exploratory excavation at the Enterprise site. Samplings were taken from numerous waste-containing drums buried at the site which confirmed the presence of chemical wastes. Stipulation of Facts ("Stip.") at ¶¶ 1-19. The city hired Roy Weston Associates, Inc., to perform a complete assessment of the damage to and risks posed by the deposits and to recommend a future course of action. Stip. at ¶ 27. Although Weston concluded that "natural site conditions were favorable for in-situ control of the Enterprise site," Stip. at ¶ 58(g), the EPA and the Pennsylvania Department of Environmental Resources ("DER") rejected Weston's proposal. Stip. at ¶¶ 66, 72. Adopting the recommendations of the EPA and DER, the city decided that its cleanup activities would include locating, removing, and disposing of all contaminated drums and contaminated soil from the site, followed by an environmentally sound closure of the site to ensure its viability for future waste management. Stip. at ¶¶ 122-124. Between June and November of 1981, the city engaged in a ground penetration survey of the Enterprise site to locate contaminated drums. Stip. at ¶¶ 177-182. In April of 1982, the city selected D'Appolonia Waste Isolation, Inc., a waste management company, to remove and transport the contaminated drums. Stip. at ¶ 200. On June 19, 1982, D'Appolonia began evacuation of the site. Stip. at ¶ 209. The city temporarily ceased Phase...