Lutz v. Chromatex, Inc.

• Decision Date: 09 June 1989
• Docket Number: Civ. No. 88-1764.
• Citation: 718 F. Supp. 413
• Parties: Carl LUTZ and Deborah Lutz, et al., Plaintiffs, v. CHROMATEX, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

718 F. Supp. 413

Carl LUTZ and Deborah Lutz, et al., Plaintiffs, v. CHROMATEX, INC., et al., Defendants.

Civ. No. 88-1764.

United States District Court, M.D. Pennsylvania.

June 9, 1989.

COPYRIGHT MATERIAL OMITTED

James R. Ronca, Schmidt & Ronca, P.C., Harrisburg, Pa., and Gerald J. Williams, Philadelphia, Pa., for plaintiffs.

John Gerard Whelly, Jr., Wilkes-Barre, Pa., Robert Ufberg, Scranton, Pa., Daniel Segal, David Richman, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Thomas B. Schmidt, III, Pepper, Hamilton & Scheetz, Harrisburg, Pa., Ronald J. Worobey, Scranton, Pa., C. George Caudle, Caldwell, Heggie & Helton, Chattanooga, Tenn., Donald W. Stever, New York City, Anthony R. Sherr, Sherr, Joffe & Zuckerman, West Conshohocken, Pa., and Robert F. DiUbaldo, New York City, for defendants.

MEMORANDUM AND ORDER

NEALON, District Judge.

Currently before the court in this action filed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA), and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (RCRA), are defendants' motions to dismiss plaintiffs' amended complaint. For the reasons that follow, defendants' motions to dismiss will be granted in part and plaintiffs will be required to file a second amended complaint.

BACKGROUND

This civil action was commenced on behalf of sixty-six (66) plaintiffs by a complaint filed on October 21, 1988. Before defendants' response time had elapsed, plaintiffs filed an amended complaint. See document 27 of record. The amended complaint consists of nine counts alleging causes of action against the various defendants under CERCLA, RCRA, and Pennsylvania common law.

According to the allegations in the amended complaint, which are accepted as true for purposes of the present motions, plaintiffs are residents or former residents of homes and apartments in West Hazleton, Pennsylvania. During October and November of 1987, the Pennsylvania Department of Environmental Resources (DER) conducted analytical tests of the private drinking water wells being used by plaintiffs. These tests revealed that the wells had been "permanently contaminated with significant concentrations of highly toxic chemicals, including ... trichloroethylene ..., dicholoroethylene ..., trichlorofluoromethane and methylene chloride." See id. at ¶ 52. Plaintiffs were exposed to these highly toxic chemicals through ingestion, inhalation, and skin absorption. Based on this contamination, the Environmental Protection Agency (EPA) determined the situation to comprise an immediate and substantial endangerment to the health of plaintiffs and others affected by the contamination. Id. at ¶ 56.

Plaintiffs allege that the contamination of their homes and their personal exposure to toxins resulted from releases of toxic chemicals caused by culpable acts and omissions of defendants, their agents, servants, and employees. See id. at ¶¶ 57-65. As a result of this contamination, plaintiffs contend that they have suffered and will continue to suffer harm and expenses, including response costs (as defined in CERCLA), personal injury, damage to their property, medical expenses, annoyance, inconvenience, and disturbance, a disruption of their daily lives, a loss of the use and quiet enjoyment of their properties, an increased risk of cancer and other diseases, emotional distress, and other damages. Id. at ¶ 66. They seek compensatory damages, reimbursement for response costs, civil penalties, exemplary damages, costs, and interest as well as "an order that defendants, at defendants' expense, take such remedial actions as are necessary to abate the pollution of the environment in and around the Chromatex and Continental sites...." Id. at pp. 28-29.

Defendant Chromatex, Inc. filed its motion to dismiss on January 18, 1989. See documents 38-40 of record. A similar motion was submitted by defendant Continental White Cap, Inc. on February 13, 1989. See document 48 of record. Plaintiffs noted their opposition to the motions on February 2, 1989 and February 24, 1989, respectively. See documents 45, 46, and 55 of record. Defendant Chromatex filed its reply brief on February 15, 1989, and defendant Continental White Cap did the same on March 13, 1989. See documents 51 and 58 of record, respectively.¹ These motions are now ripe for disposition.

DISCUSSION

In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.). Because plaintiffs assert several claims against defendants, each claim must be examined in seriatim to determine if that claim should withstand a motion to dismiss. Kuchka v. Kile, 634 F.Supp. 502, 506 (M.D.Pa.1985) (Nealon, C.J.).

CERCLA

A. Response Costs

In discussing a claim for response costs under CERCLA, the Third Circuit Court of Appeals has stated as follows:

CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage. Problems of interpretation have arisen from the Act's use of inadequately defined terms, a difficulty particularly apparent in the response costs area.

See Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 648 (3d Cir.1988), aff'g, 659 F.Supp. 1269 (D.Del. 1987). Nevertheless, in dealing with such a claim, it must be kept in mind "that the Act was not intended to compensate third parties for damage resulting from hazardous substance discharge." Id. at 648 (citing Exxon Corp. v. Hunt, 475 U.S. 355, 375, 106 S.Ct. 1103, 1115, 89 L.Ed.2d 364 (1986)).

Section 107(a)(4)(B) of CERCLA provides that a responsible party shall be liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan...." See 42 U.S.C. § 9607(a)(4)(B). The Act does not explain the term "cost of response." See Artesian Water Co. v. Government of New Castle County, 659 F.Supp. at 1286 n. 28. The Act does define "response" as "remove, removal, remedy, and remedial action," see 42 U.S.C. § 9601(25), and "these terms explicitly include enforcement activities related to the cleanup effort." Artesian Water Co. v. Government of New Castle, 851 F.2d at 648.

Section 101(23) states that the term "remove" or "removal" means

the cleanup or removal of released hazardous substances from the environment, such actions as may be necessarily taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act 42 U.S.C.A. § 5121 et seq..

See 42 U.S.C. § 9601(23). In turn, the term "remedy" or "remedial action" is defined as

those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.

See id. § 9601(24).

To state a claim under section 107 of CERCLA, a plaintiff must allege that (1) the waste disposal site is a "facility" within the meaning of 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" from the facility has occurred, id. § 9607(a)(4); and (3) such "release" or threatened release" has caused the plaintiff to incur response costs that are "consistent with the national contingency plan...." Id. § 9607(a)(4); see also Ascon Properties, Inc. v....