Foster v. US

Decision Date29 March 1996
Docket NumberCiv. No. 95-722 (CRR).
Citation922 F. Supp. 642
PartiesP. Wesley FOSTER, Jr., Plaintiff, v. UNITED STATES of America, General Services Administration, and District of Columbia, Defendants.
CourtU.S. District Court — District of Columbia




Donald B. Mitchell, Jr., Lawrence E. Blatnik, Andrew C. Cooper, and Peder Magee, of Arent Fox Kintner Plotkin & Kahn, Washington, DC, for plaintiff.

Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division, and Cannon M. Tolbert and Mary F. Edgar of the Environmental Defense Section, Environmental & Natural Resources Division, United States Department of Justice, Washington, DC, for defendant United States.

William T.K. Dolan, Office of Regional Counsel, General Services Administration, Washington, DC, and Gerald Kohns, United States Army Litigation Center, Arlington, VA, for defendant General Services Administration.

Charles F.C. Ruff, Corporation Counsel, Martin Grossman, Deputy Corporation Counsel, Civil Division, William J. Earl, Chief, Major Case Section, Civil Division, and Gail S. Miller, Assistant Corporation Counsel for the District of Columbia.

CHARLES R. RICHEY, District Judge.

Before the Court in the above-captioned case1 are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, the Court shall grant the defendants' Motions for Summary Judgment on the plaintiff's claims under the CERCLA for past costs he has incurred investigating contamination located at his property in Southwest Washington, D.C., and on the defendants' counter-claims against the plaintiff that he is liable under the CERCLA as a current owner of the property. The Court shall deny the plaintiff's and the defendants' Motions regarding the defendants' liability under the CERCLA for future response costs. Finally, the Court shall grant the defendants' Motions for Summary Judgment on the plaintiff's claims under RCRA.


The plaintiff, the sole general partner of Riverside Associates ("Riverside"), brings action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607, 9613, and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), against the District of Columbia (the "District"), and the United States, seeking both declaratory and monetary relief with regard to the environmental contamination of property belonging to him in Southwest Washington, D.C. ("the Site"). The defendants, in turn, assert counterclaims against the plaintiff under the CERCLA. The District also asserts a cross-claim against the United States under the CERCLA.

Under the CERCLA, the plaintiff seeks to recover response costs incurred by him in connection with the investigation of contamination at the Site. The plaintiff also seeks prejudgment interest on such costs from the date of the Complaint, in accordance with 42 U.S.C. § 9607, as well as a declaratory judgment pursuant to 42 U.S.C. § 9613(g)(2) and 28 U.S.C. § 2201 that the defendants are liable for all costs consistent with the National Contingency Plan, 40 C.F.R. Part 300.1 et seq., that may be incurred by the plaintiff as a result of releases or threatened releases of hazardous substances at, onto, and from the Site. The plaintiff also alleges that the defendants are liable under the RCRA as "persons ... who have contributed ... to the ... handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment" at the Site. 42 U.S.C. § 6972(a)(1)(B).

The Site consists of 7.98 acres of fill property; it sits, in part, on what used to be the James Creek Canal,3 and is bounded on the east by the western boundary of Second Street, S.W., on the north by the northern boundary of Q Street, S.W., on the west by Fort Leslie J. McNair, and on the south by the northern boundary of S Street, S.W. The plaintiff claims that the defendants are former owners and/or operators, within the meaning of CERCLA, of the Site and its adjacent properties, whose actions dating back as early as the nineteenth century have contaminated the Site with lead, mercury, polychlorinated biphenyls ("PCBs"), polynuclear aromatic hydrocarbons ("PAHs"), and total petroleum hydrocarbons ("TPHs"). The plaintiff alleges that the United States contaminated the Site by the operation of an arsenal at Fort McNair, the filling of the property with material containing lead, mercury, PAHs and petroleum substances,4 and the disposal and release of PCBs from electrical transformers formerly located at the Site. He alleges that the District is liable for the contamination at the Site by virtue of its former operation of a sewage system that deposited allegedly hazardous substances into the Canal, its having sprayed the Canal with kerosene, and its role in filling the Canal.

The history of the Site and its surroundings is somewhat complex. As noted, a military reservation owned by the federal government is located directly west of the Site and currently comprises the entire western boundary thereof. That property was formerly known as the Washington Arsenal, the Washington Barracks, the Army War College, and Fort Humphries; it is currently known as Fort McNair. From the early nineteenth century until 1881, portions of the reservation were used as an arsenal for the manufacture and storage of artillery, small arms, and ammunition. While it is undisputed that the materials used to produce the artillery and ammunition included lead and mercury, there is no direct evidence in the record regarding the specific types of wastes produced by the manufacture of munitions at the reservation, nor is there any evidence in the record concerning the manner of disposal of such wastes.

The James Creek Canal, which itself constituted part of what is today the Site, was built from the James Creek in the mid to late 1870s. When it was in existence, the Canal separated the western edge of the Site from the eastern boundary of Fort McNair. In the early 1900s, pursuant to authorization by Congress, the District leased wharf space along the Canal to private parties. During that period, the Canal also formed part of the District's sewage system, carrying sewage from the District to the Anacostia River. In addition, both the District and the United States Army used the Canal for disposal of waste: the District deposited street sweepings, dredged material, and other refuse, and sprayed the Canal with oil and/or kerosene, while the Army deposited ashes, powdered alum, mud, sewage, and other materials from the neighboring reservation.

In 1907, the Commissioners of the District of Columbia approved a plan to permanently fill the Canal after its use as a sewer was discontinued; this policy was ratified by the Commissioners in September 1916 and the portion of the Canal bordering the Site was filled by 1930 under the supervision of the District's Sanitary Engineer. The materials used to fill the Canal included street sweepings, ash, soot, garbage, refuse from street catch basins, and residential garbage. While the filled portions of the Canal remained under the ownership of the United States and within the jurisdiction of the National Park Service after 1930, the District exercised control over these areas and the city streets that formerly traversed the Site.

On December 9, 1941, a Declaration of Taking was filed in this Court by the Acting Federal Works Administrator pursuant to an Act of Congress "to provide for the Construction of Public Buildings," which resulted in the acquisition of the Site by the United States. The United States owned the Site from that date until 1985.

Shortly after it acquired the Site, the United States constructed three temporary office buildings on the eastern side of the Site and the adjoining property immediately to the south, which had also been acquired by the United States.5 All three of the buildings utilized transformers, which provided power to the buildings by stepping down the amperage from existing power lines.

These transformers, which were housed in concrete vaults, each contained approximately 250 gallons of liquid polychlorinated biphenyls ("PCBs"). Such transformers typically "weep" or "seep" dielectric fluids containing PCBs. And while the transformers were operational, there was periodic maintenance and testing by GSA employees, which involved, among other things, determining the dielectric strength of PCB fluid in the transformers by draining fluid from such transformers into a cup for testing. Apparently, GSA employees often dumped the contents of the cup onto the ground outside the vault after the testing was completed.6 In any event, there was visible staining of the concrete areas under the transformers.

In August 1983, the GSA, on behalf of the United States, conducted an auction for the sale of the Site. However, because of low bidding, the GSA determined not to sell the Site. On June 27, 1984, after notice and invitation, GSA conducted a sealed bid auction for sale of the Site. The high bidder at the auction was an investment partnership; however, the partnership was unable to secure the financing necessary to close the deal. Theodore Mariani, an architect and engineer who had been retained by the partnership to help with planning for the development of the Site, then helped the partnership to find other investors. The resulting investment group was Riverside, which purchased the Site in June 1985.7

Internal GSA Federal Property Management policies required that GSA provide notice of environmental contamination to prospective purchasers in official advertising material. However, there is no evidence that Riverside was aware of the GSA internal policy at the time it...

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