Jones v. Inmont Corp.

• Decision Date: 26 April 1984
• Docket Number: No. C-1-83-1202.,C-1-83-1202.
• Citation: 584 F. Supp. 1425
• Parties: Joselyn JONES, et al., Plaintiffs, v. INMONT CORP., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

584 F. Supp. 1425

Joselyn JONES, et al., Plaintiffs, v. INMONT CORP., et al., Defendants.

No. C-1-83-1202.

United States District Court, S.D. Ohio, W.D.

April 26, 1984.

D. David Altman, Cincinnati, Ohio, for plaintiffs.

Thomas T. Terp, James M. Moore, Cincinnati, Ohio, for defendants.

OPINION AND ORDER

SPIEGEL, District Judge:

This matter, which arises from the alleged operation of an illicit hazardous waste dump in Kentucky, came on for consideration of defendant Inmont Corporation's motion to dismiss (doc. 6), plaintiffs' memorandum in opposition (doc. 10), defendant's reply memorandum (doc. 11), and the oral arguments of both parties.

The plaintiffs' complaint alleges ten causes of action under federal and state common law and several federal statutes. The counts that are the subject of this motion are the first, a claim under the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., (CERCLA), and the third, a claim under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., (RCRA). Defendant's motion asserts that the plaintiffs have not stated, and cannot state, any claim for relief under these two statutes.

Defendant Inmont's motion to dismiss challenges plaintiffs' CERCLA cause of action on the ground that the damages requested by the plaintiffs are not response costs and are not, therefore, recoverable under this statute. We disagree. We hold that Count One sufficiently alleges response costs incurred within the meaning of CERCLA.

Plaintiffs' RCRA cause of action is challenged on the grounds that the statute does not apply to an abandoned or inactive dump site such as this, that there is no private right of action to abate an imminent hazard, and that the application of RCRA to activities engaged in before the effective date of the Act amounts to an impermissible retroactive application of a prospective statute. Again, we disagree. We hold that Count Three sufficiently alleges facts to establish the existence of an imminent hazard and that a private citizen may sue to abate such a hazard even if the defendant's contributory activities occurred in the past. For these reasons, which are more fully explained below, defendant's motion to dismiss is denied.

INTRODUCTION

The plaintiffs' complaint alleges that they are Kentucky residents and owners of property adjoining an illegal dump site containing hazardous wastes generated by this defendant. The other defendant, Liberty Industries, purportedly acted as defendant Inmont's agent in transporting and dumping hazardous wastes in an open pit or ditch on a farm in Kentucky that was never issued a license or permit to accept hazardous or non-hazardous wastes. The defendants are further accused of intentionally concealing the nature of their activities from the authorities and the owner of the farm, of using unsafe and improper methods of disposing of both solid and liquid hazardous wastes, and of failing to warn the farm's owner and his neighbors of the future hazard posed by the illegal dumping.

The complaint characterizes the defendants' conduct as constituting control and operation of a hazardous waste facility and as contributing to the creation of an imminent hazard. In fact, the Administrator of the Environmental Protection Agency (EPA) designated the dump site an imminent threat to human health and removed nine hundred tons of toxic and hazardous waste from the site in March of 1983. The plaintiffs contend that these efforts have been unsuccessful in alleviating the threat of release of hazardous substances and subsequent harm to the physical and human environment. The plaintiffs request declaratory and injunctive relief and compensatory and punitive damages. The damages enumerated in the complaint include medical costs incurred, loss of property value, and loss of use of wells and lakes on plaintiffs' property.

This Court's function when reviewing a motion to dismiss is necessarily limited by the fact that the case is in such an early stage of its development; defendant Inmont has not yet answered the plaintiffs' claims against it, and no evidence has yet been presented or refuted. We have before us only the allegations of the plaintiffs' complaint, and those we accept as true and construe in plaintiffs' favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The issue before the Court is not whether the plaintiffs are likely to prevail in their claims under these two federal statutes; it is simply whether they are entitled to offer proof in support of those claims. Id. The challenged counts in the plaintiffs' complaint will not be dismissed unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their CERCLA and RCRA claims that would entitle them to relief under those acts. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

COUNT ONE—CERCLA

Count One of plaintiffs' complaint alleges that defendant Inmont is liable to the plaintiffs under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9607(a)(3), which imposes liability on any person who arranged for the disposal, treatment, or transport of any hazardous substance which is released, or is threatened to be released, and causes the incurrence of response costs. CERCLA was enacted to fill gaps left by the earlier Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. in dealing with abandoned dump sites, in requiring notification of the existence of inactive sites, and in providing funds for state hazardous waste programs. S.Rep. No. 848, 96th Cong., 2d Sess. 11, H.R.Rep. No. 1016 (Part I), 96th Cong., 2d Sess. 25, reprinted in 1980 U.S.Code Cong. & Ad.News 6119, 6125.

In addition to imposing liability on generators and transporters of hazardous wastes and on operators and owners of dump sites, CERCLA also requires notification of the existence of dump sites and the occurrence of releases from them, it affords the EPA broad powers in responding to releases and threatened releases, and it establishes and regulates a trust fund to pay for necessary response actions. The defendant's motion challenges plaintiffs' claim under CERCLA on the grounds that the costs allegedly incurred are not response costs within the meaning of the statute, and that no private right of action exists for the recovery of any damages other than response costs.

Who Can Sue

In its original memorandum in support of its motion, defendant alleged that private parties such as these plaintiffs have no rights of action under CERCLA; in its reply memorandum and at oral argument, however, defendant conceded that section 9607(a)(4)(B) indeed authorizes recovery by "any other person" who has incurred certain costs defined in the act.

The phrase "any other person" has even been interpreted to include a dump site owner, which itself could have been liable under CERCLA. City of Philadelphia v. Stephan Chemical Co., 544 F.Supp. 1135, 1143 (E.D.Pa.1982). Noting that the key objective behind CERCLA was to facilitate the prompt clean up of hazardous waste sites by providing a means of financing both governmental and private responses, the district court stated that the liability provision of section 9607 "gives a private party the right to recover its response costs from responsible third parties." Id. In light of the plain language of the act itself, and the broad judicial interpretation reflected in the Stephan Chemical case, the plaintiffs in the instant case have the right to sue under CERCLA's liability provision.

Who Can Be Sued

Section 9607 is similarly clear in its description of who is a responsible party subject to suit under the provision: Liability is imposed upon those who own and operate a facility, those who owned or operated a facility at a time when hazardous wastes were disposed of there, those who arranged for disposal in or transport to such a facility, and those who transport or transported hazardous wastes. 42 U.S.C. § 9607(a)(1)-(4). As it is written in the past tense, and as it expressly includes those who merely arranged for the disposal or transportation of hazardous wastes to a facility from which a present release is occurring or is threatened, section 9607 imposes liability on past generators such as defendant Inmont. In United States v. Wade, 546 F.Supp. 785 (E.D.Pa.1982), the EPA attempted to obtain an injunction against several former off-site generators of hazardous wastes. The government proceeded under the imminent hazard section of CERCLA, however, and the action was dismissed. The district court indicated in dictum that the appropriate action would have been under section 9607, which "clearly includes generators of hazardous wastes among those potentially liable to be sued" and which "is written in the past tense and clearly applies to past generators." Id. at 793; accord United States v. Outboard Marine Corp., 556 F.Supp. 54, 56 (N.D.Ill. 1982).

There is no doubt that the imposition of liability on former generators constitutes a retroactive application of the statute. In an exhaustive discussion of the legislative history, the District Court for the Northern District of Ohio concluded that the clear Congressional intent to make industry pay for the costs to clean up hazardous wastes sites was sufficient to override the presumption against retroactivity. Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1314 (N.D.Ohio 1983) (past transporters' motion to dismiss denied). The complaint alleges that defendant Inmont not only arranged for the transportation and disposal of the hazardous wastes now allegedly being released from the Kentucky site, but also operated the site at one time. Although all of its activities admittedly occurred in the past, defendant Inmont is a responsible party under section 9607(a)(2) or (a)(3). It is,...