D'Imperio v. United States

• Decision Date: 01 December 1983
• Docket Number: Civ. A. No. 83-1369.
• Citation: 575 F. Supp. 248
• Parties: Dr. Francesco D'IMPERIO and Quinton D'Imperio, Plaintiffs, v. UNITED STATES of America, Motel Dennis, Inc., John J. D'Andrea, Ronald Phelps, Calt, Inc., and John Doe and Richard Roe, unknown persons, Defendants.
• Court: U.S. District Court — District of New Jersey

575 F. Supp. 248

Dr. Francesco D'IMPERIO and Quinton D'Imperio, Plaintiffs, v. UNITED STATES of America, Motel Dennis, Inc., John J. D'Andrea, Ronald Phelps, Calt, Inc., and John Doe and Richard Roe, unknown persons, Defendants.

Civ. A. No. 83-1369.

United States District Court, D. New Jersey.

December 1, 1983.

COPYRIGHT MATERIAL OMITTED

Marion Percell, Lowenstein, Sandler, Brochin, Kohl, Fisher, Boyland & Meanor, Roseland, N.J., for plaintiffs.

Ronald H. Clark, Asst. U.S. Atty., Newark, N.J., John C. Hammock, Environmental Defense Section, Land and Natural Resources Division, U.S. Dept. of Justice, Dov Weitman, Environmental Protection Agency, Washington, D.C., for defendant, United States of America.

Thomas P. Foy, Hartman, Schlesinger, Schlosser & Foy, Mount Holly, N.J., for defendants, Motel Dennis, Inc. and John J. D'Andrea.

OPINION

GERRY, District Judge.

The plaintiffs in this case are seeking a declaratory judgment to the effect that they are not liable for hazardous substance cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607. Further, they seek a declaration that if they contribute to the cost of cleanup, their actions are compensable under § 9607(a)(4)(B). Finally, they wish to enjoin the United States from continuing to refer to their tract of land, which appears on a proposed National Priorities List of hazardous dumpsites, as the "D'Imperio Tract."

The D'Imperios are the owners of a tract of land consisting of approximately 30 acres in Hamilton Township, New Jersey. They have owned the property since 1969. According to the complaint, prior to 1969, hazardous substances (including those enumerated in CERCLA, 42 U.S.C. § 9601(14)) were disposed on the property. In 1977, the New Jersey Department of Environmental Protection became aware of the presence of these substances on the property and ordered its prior owner, Motel Dennis, Inc., to properly remove the substances. Motel Dennis, Inc. did not comply, and no further steps were taken by the state. In 1980, the plaintiffs learned of the presence of the hazardous substances. In the spring of 1982, the United States Environmental Protection Agency released $250,000 from the Hazardous Substance Response Trust Fund ("Superfund") established under CERCLA (42 U.S.C. § 9631) for the purpose of studying the dumpsite. In a letter dated March 18, 1982, the EPA advised the D'Imperios that "conditions at the D'Imperio site have resulted in releases or threatened releases of hazardous substances ... which may present an imminent and substantial endangerment to the public health"; that the EPA had determined that Dr. Francesco D'Imperio "may be a responsible party with respect to the site"; and that if he failed to undertake an investigation of the site as a first step toward remedial activity, he "may be held liable under section 107 of CERCLA 42 U.S.C. § 9607 for all costs incurred by the United States Government in connection with the site." In January 1983, the EPA proposed to place the site on a National Priorities List (pursuant to 42 U.S.C. § 9605(8)(B)) of the most hazardous dumpsites in the United States.

In seeking a declaratory judgment, the plaintiffs first seek a judgment to the effect that they are not liable for any cost of cleanup of the site, since they fall within the defense to liability provided by 42 U.S.C. § 9607(b). Second, they seek a judgment to the effect that any costs they do incur are "necessary costs" within the meaning of § 9607(a)(4)(B), such that those costs are recoverable from either the Superfund or other parties responsible for the environmental damage. Finally, they seek an injunction restraining the United States from continuing to refer to the site as the D'Imperio Tract, as such reference is harmful to the reputations of the plaintiffs. The defendant, United States of America, has moved to dismiss as to these first two prayers for relief on the grounds that the controversy is not yet ripe for disposition. One reason the defendants cite for the lack of ripeness is that there has been no "final action" by the EPA, as is required by the Administrative Procedure Act for court adjudication. As to the prayer for injunctive relief, the USA seeks to dismiss the complaint as "patently frivolous."

Ripeness is a requirement for relief under the Declaratory Judgment Act's language of "actual controversy." As stated in Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941):

The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree .... Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is substantial controversy, between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment.

It is clear, as the plaintiffs assert, that a party may seek a declaration of non-liability under the Declaratory Judgment Act. Lumbermen's Mutual Casualty Co. v. Borden Co., 241 F.Supp. 683 (S.D.N.Y.1965); Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The actual enforcement of a statute or regulation, or the commencement of a suit by a private party is no prerequisite of a suit to establish non-liability. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1974); Lake Carriers Ass'n. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). Nevertheless, not everyone who fears that a government agency or private party may seek to compel enforcement of a law or agreement may bring suit under the Declaratory Judgment Act. One's fears must be sufficiently real and immediate, based on the actions or representations of one's potential adversary or based on actions one desires to take which may run afoul of a law or agreement, valid or otherwise.

Here, the plaintiffs, as owners of the site, are understandably upset about the possibility of being held liable under 42 U.S.C. § 9607. While we do not consider the plaintiffs' fears "imaginary or speculative," (see Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974)), in view of the letter they received stating that they "may be liable" and in view of the feasibility investigation about to be, or now being, undertaken by the EPA, yet we do not find their fears to be based on considerations sufficiently immediate to warrant a declaration of non-liability. The Government's letter speaks throughout with equivocation: the EPA "may spend public funds"; Dr. D'Imperio "may be a responsible party"; corrective action "may be necessary"; Dr. D'Imperio "may be liable." The letter does not require any action from the plaintiffs. At this point, as stated above, the Government has, in fact, begun to spend public funds to investigate the dumpsite, but the investigation is not for the purpose of assigning liability among the parties, but for the purpose of planning for a cleanup of the site, if necessary.

With regard to the letter the plaintiffs received, the affidavit of Francis Biros of the EPA indicates that it was only one of some 3,000 letters sent out to potentially responsible parties having some relation to the several hundred sites on the National Priorities List. The affidavit states that the letters were sent out "without first determining who is legally liable"; that the "EPA did not, and does not, regard the notice letters as determinations of liability"; that the EPA "has not sought to recover any response costs ... or brought any other action against them"; and that the letters, in requesting the recipients to notify the agency of whether they would voluntarily undertake feasibility studies, was designed to help the EPA expedite its own investigations. In short, this case seems a long way from being referred to the Attorney General's office for action under § 9607.

But it is not simply because the case fails traditional tests for ripeness that we must dismiss the plaintiffs' prayer for a declaration of non-liability. The provisions of the Administrative Procedure Act (see 5 U.S.C. § 704) require that only "final agency action" is subject to judicial review. "A preliminary, procedural or intermediate agency action or ruling not directly reviewable is subject to review only on the review of the final agency action." Id. The plaintiffs argue that under 5 U.S.C. § 702, "a person suffering legal wrong because of agency action is entitled to judicial review." However, the Act must be read as a whole (see Ellsworth Bottling Co. v. United States, 408 F.Supp. 280 (W.D.Okl. 1975)); thus, "agency action" referred to in § 702 must mean "final agency action." The term "agency action" is defined broadly to include "orders, licenses, sanctions, relief, or the equivalent," 5 U.S.C. § 551, and covers "every form of agency power, proceeding, action, or inaction." FTC v. Standard Oil Co. of California, 449 U.S. 232, 239, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980). Here, then, the "power" of the EPA to seek the institution of a liability suit would constitute agency action, but the notice letter is far short of a final decision that the Government undertake such a suit. Where, as here, the EPA cannot bring the suit itself but must refer the matter to the Attorney General (see Executive Order 12286 of January 19, 1981, 46 Fed.Reg. 9901), it is less than certain what actions of the EPA would meet the finality requirement; it is clear, however, that the notice letter represents only the most preliminary of determinations. Clearly, a letter stating that a party "may be liable" is no more final than an FTC complaint stating that the agency had "reason to believe" that the named parties had violated the Federal Trade Commission Act. In the latter instance, however, the Supreme Court determined the complaint insufficient to...