Reardon v. US

• Decision Date: 06 February 1990
• Docket Number: Civ. A. No. 89-2278-C.
• Citation: 731 F. Supp. 558
• Parties: Paul D. REARDON and John E. Reardon, Plaintiffs, v. UNITED STATES of America and United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — District of Massachusetts

731 F. Supp. 558

Paul D. REARDON and John E. Reardon, Plaintiffs, v. UNITED STATES of America and United States Environmental Protection Agency, Defendants.

Civ. A. No. 89-2278-C.

United States District Court, D. Massachusetts.

February 6, 1990.

Philip D. O'Neill, Jr. and Lorelei J. Borland, Edwards & Angell, Boston, Mass., for plaintiffs.

George B. Henderson, II, Asst. U.S. Atty., for defendants.

CAFFREY, Senior District Judge.

This case is before the court on plaintiffs' motion for a preliminary injunction restraining the defendants from imposing a federal lien on the plaintiffs' property pursuant to section 107(l) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S.C. § 9607(l). The plaintiffs, Paul and John Reardon (the "Reardons"), filed this action against the defendants, the United States and the United States Environmental Protection Agency ("EPA") asserting three counts in their complaint. First, the Reardons claim that they are "innocent landowners" under section 107(b) of CERCLA, 42 U.S.C. § 9607(b), and, consequently, they are not liable to the EPA for the cost of removing contaminated soil from their property or studying future long-term remedies for the site. Second, the Reardons assert that the EPA's imposition of a federal lien under section 107(l) of CERCLA, 42 U.S.C. § 9607(l), constitutes a deprivation of their property and violates their rights of procedural due process under the fifth amendment. Third, the Reardons allege that the EPA exceeded its statutory authority under section 107(l) of CERCLA, 42 U.S.C. § 9607(l), by placing the federal lien on all their property rather than just the parcels affected by the EPA cleanup. The plaintiffs seek declaratory judgment as to their liability under count one and a preliminary injunction as to counts two and three. For the reasons stated below, counts one and three should be dismissed for lack of subject matter jurisdiction, and, as to count two, plaintiffs' motion for preliminary injunction should be denied.

I.

The property at issue in this case is a 16-acre parcel of grassy field in Norwood, Massachusetts. The property, now called Kerry Place, is situated between a residential neighborhood along Pellana Road and an industrial manufacturing plant along Route One. For many years, the land was vacant and neighborhood children used the field as a playground.

Prior to 1979, Kerry Place was part of a larger 25-acre parcel which included the manufacturing plant. On October 10, 1979, the Grant Gear Realty Trust purchased the manufacturing facility and the fenced area around the plant (the "Grant Gear property"). On November 10, 1979, the Reardons, in partnership with Paul J. Birmingham, purchased the remaining property and renamed the principal parcel Kerry Place. The Reardons intended to develop the property commercially.

On April 1, 1983, a resident of Pellana Road reported to the Massachusetts Department of Environmental Quality and Engineering ("DEQE") that Kerry Place had been contaminated with industrial wastes from prior owners of the manufacturing plant. DEQE investigators responded to the complaint and sampled soils from Kerry Place and the Grant Gear property. The DEQE discovered high levels of polychlorinated biphenyls ("PCBs") at certain "hot spots" on both of the properties. Certain samples from Kerry Place contained more than 110,000 parts per million (ppm) of PCBs; the accepted safe levels for PCBs in the environment is 50 ppm.¹

The contamination was concentrated along a fence marking the boundary between Kerry Place and the Grant Gear property. Upon further investigation, the DEQE learned that, since its first operation in 1942, the manufacturing plant had produced electrical equipment and electrical components. Electrical manufacturers commonly use large quantities of dielectrical fluid which contains PCBs. The DEQE investigators concluded that companies at the Grant Gear property, stretching back many years, had dumped toxic wastes and carcinogens across the fence onto Kerry Place.

On June 19, 1983, the EPA dispatched a technical assistance team to investigate the site. The EPA discovered PCB concentrations ranging from 5,000 to 220,000 ppm in soil samples from Kerry Place and the Grant Gear property. The EPA authorized an immediate cleanup of the contaminated areas.

From June 24 to August 1, 1983, the EPA conducted a full-scale CERCLA removal action at Kerry Place and the Grant Gear property. The EPA removed 518 tons of contaminated soil from both properties, and the soil was trucked to Model City, New York for disposal. The EPA funded this removal action which cost about $200,000.

In August 1983, the Reardons began to build a road along the fence between Kerry Place and the Grant Gear property. The Reardons also excavated a trench along the fence line. The Reardons notified the EPA of their actions, but the road construction was not done under EPA supervision. As a result of the new grading and excavation, the EPA retested the soil along the roadway. The samples showed PCB contamination as high as 11,000 ppm along the fence line of the Kerry Place property.

In 1984, the Reardons began selling parts of Kerry Place to various new owners. Kerry Place was subdivided into eight lots along the new road, and four of the lots were transferred to various commercial interests. The Reardons retained ownership of the remaining lots at Kerry Place.

In 1985, the EPA notified the Reardons by letter that they may be liable for the costs of cleanup at Kerry Place pursuant to sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606, 9607. The EPA identified the Reardons, along with ten other present and prior owners of the properties, as potentially responsible parties for the contamination. The letter explained that the Reardons, as an owner of the property, may be held liable for the cost of the EPA removal action. The letter, however, did not state the amount of possible liability.

In 1987, the EPA undertook a long-term remedial investigation and feasibility study ("RI/FS") of the remaining contamination at the Kerry Place and Grant Gear properties. In April 1988, EPA Project Manager Jane Downing met with one of the Reardons to discuss the preliminary results of the field investigations. Sometime afterwards, Downing learned that the Reardons intended to remove certain contaminated soil on their own so that they could develop the property. On October 20, 1988, Downing wrote a letter to the Reardons informing them of the test results from sampling data which would be used in a draft RI/FS and Downing requested the Reardons to keep her informed of any removal actions taken at the site. On December 2, 1988, Downing forwarded a list of potential hazardous waste transporters to the Reardons, and reminded the Reardons to coordinate any removal actions with the EPA. In January 1989, the Reardons informed Downing they had completed their own removal action at Kerry Place.²

On March 23, 1989, the EPA filed a notice of lien with the Norfolk County Registry of Deeds on the Reardons' remaining lots at Kerry Place pursuant to section 107(l) of CERCLA, 42 U.S.C. § 9607(l). On March 28, 1989, the EPA also notified the Reardons of their action by letter. Subsequently, the parties exchanged correspondence concerning the possible amount of liability secured by the lien. In a letter dated July 12, 1989, the EPA had determined that the Reardons' share of the cleanup costs would total $336,709. The EPA emphasized, however, that this amount was calculated only for the purpose of possible settlement, and it was not binding as to the Reardons' potential liability. On September 29, 1989, the regional administrator for the EPA selected a long-term remedy for the entire Norwood property which would cost an estimated $16,100,000.

On October 10, 1989, the Reardons filed this action seeking declaratory judgment and a preliminary or permanent injunction removing the lien from Kerry Place.

II.

Congress passed CERCLA in 1980 to provide for the cleanup of abandoned hazardous waste sites.³ As amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),⁴ CERCLA creates three statutory alternatives for responding to releases or threatened releases of hazardous substances. First, the EPA can conduct its own cleanup of a site and then recover its costs from responsible parties. 42 U.S.C. §§ 9604(a), 9607(a). Second, the EPA can order the potentially responsible parties to carry out a cleanup of their property. 42 U.S.C. § 9606(a). Third, certain third parties can carry out the cleanup and recover their costs against responsible parties. 42 U.S.C. §§ 9607(a), 9612.

In the first instance, the United States may bring an action in a United States district court against a responsible party to recover its costs for the cleanup. 42 U.S.C. §§ 9607(a), 9613(b), 9613(h). CERCLA makes the owner or operator of a facility where hazardous waste has been disposed liable to the United States for its response costs, any natural resource damages, and certain other costs. 42 U.S.C. § 9607(a). A facility is defined broadly to include "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located...." 42 U.S.C. § 9601(9)(B). CERCLA imposes strict liability on responsible parties subject only to certain limited statutory defenses. 42 U.S.C. § 9607(b).

The liability under CERCLA extends to the costs of any response actions taken by the United States. 42 U.S.C. § 9607(a)(4)(A). Response actions are defined to include removal and remedial actions. 42 U.S.C. § 9601(25). A removal action is generally an immediate or interim measure taken to abate a present, serious threat to the public. 42 U.S.C. § 9601(23). A remedial action, on the other hand, is a long-term or permanent remedy of the problem. 42 U.S.C. § 9601(24). Notably, both removal and remedial...