Regan v. Cherry Corp.
| Decision Date | 10 February 1989 |
| Docket Number | No. C.A. 88-0250 L.,C.A. 88-0250 L. |
| Citation | 706 F. Supp. 145 |
| Parties | Quinlan T. REGAN, Joseph Mollicone, John S. Renza, Jr., d/b/a RMR Associates v. The CHERRY CORPORATION (also known as The Cherry Electrical Products Co.), Cherry Semiconductor Company, Inc., and certain as yet unknown John Does. CHERRY SEMICONDUCTOR COMPANY, Third-Party Plaintiff, v. AMPEREX ELECTRONIC CORPORATION and Amperex Electronic Industries, Inc., Third-Party Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Deming E. Sherman and Mark A. Pogue, Edwards & Angell, Providence, R.I., for RMR Associates.
Gerard Petros, Gregory L. Benik, Hinckley, Allen, Snyder & Comen, Providence, R.I., for The Cherry Corp. and Cherry Semiconductor Co., Inc.
David J. Oliveira, Mark O. Denehy, Adler Pollock & Sheehan, Providence, R.I., for Amperex Electronic Corp.
The present dispute concerns the alleged improper disposal of hazardous waste by defendants, The Cherry Corporation, Cherry Semiconductor Company, Inc., and certain as yet unknown John Does, on plaintiffs' property. Plaintiffs, Quinlan Regan, Joseph Mollicone, John Renza, d/b/a RMR Associates, have brought a three-count action seeking recovery under two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), and on a common law trespass claim. Moreover, plaintiffs are praying for a monetary recovery and punitive damages in each of the counts.
In response, defendants filed the instant motion to dismiss. They maintain that one of the CERCLA claims should be dismissed because plaintiffs failed to give the required sixty-day notice before bringing suit and because the relevant statutory provision does not permit the recovery of cleanup costs by private citizens as plaintiffs request. Furthermore, defendants seek dismissal of the trespass action on the ground that plaintiffs did not own the property involved when the trespass allegedly occurred. Finally, defendants move for dismissal of all the punitive damages claims for several reasons.
This Court agrees that one of plaintiffs' CERCLA claims must be dismissed because the relevant statutory section does not permit citizen suits seeking recovery of cleanup costs. In addition, plaintiffs' prayer for punitive damages on its other CERCLA claim must be dismissed because the relevant section only permits the recovery of response costs and not damages. However, this Court finds that plaintiffs have alleged a valid trespass action under the theory of continuing trespass. Moreover, their complaint sufficiently alleges the type of conduct for which the award of punitive damages is proper. Therefore, defendants' motion to dismiss is granted as it relates to the CERCLA claims and denied as it affects plaintiffs' trespass claim and related prayer for punitive damages.
Plaintiffs are the current owners of a parcel of land located at 99 Bald Hill Road in Cranston, Rhode Island. They allege that in 1972, Micro Components Company Inc. (later renamed Cherry Semiconductor Company, Inc.) sublet property immediately adjacent to plaintiffs' land. In 1977 Micro Components Company, Inc. was acquired by Cherry Electrical Products Corporation. Cherry Electrical Products Corporation changed its name to The Cherry Corporation in 1986.
Plaintiffs allege that the Cherry Corporation, Cherry Semiconductor Company, Inc. and their predecessors in interest "knowingly, wrongfully and maliciously disposed of generated hazardous wastes" onto plaintiffs' Bald Hill Road property. Plaintiffs' Complaint at 3. They maintain that such "wastes" constitute hazardous substances under CERCLA, § 101(14), 42 U.S.C. § 9601(14).
On April 21, 1988, plaintiffs filed a three count complaint against Cherry Semiconductor Company, Inc., The Cherry Corporation, and certain unknown John Does. The John Does are defined as those individuals who directed the other defendants to pollute the Bald Hill Road site. Plaintiffs brought Count I pursuant to § 107 of CERCLA, 42 U.S.C. § 9607; Count II pursuant to § 310(a)(1) of CERCLA, 42 U.S.C. § 9659(a)(1); and Count III pursuant to the common law of trespass. On each of these counts plaintiffs seek $1,000,000 in "general damages for the costs of cleanup to date," $5,000,000 in punitive damages, the costs of their suit including reasonable attorney fees, and a declaration that the defendants are liable for future cleanup expenses.
On July 20, 1988, defendants filed the instant motion to dismiss. Defendants maintain that Count II, the § 310 claim, should be dismissed in its entirety because plaintiffs failed to satisfy the section's sixty-day notice requirement, and because § 310 does not provide for the recovery of damages or response costs. Second, defendants contend that Count III's trespass claim must be dismissed in its entirety because plaintiffs did not have title or possession of the property when the alleged tort occurred.
Finally, defendants seek dismissal of all plaintiffs' punitive damages claims. Defendants rely on two arguments. First, with regard to the trespass claim, they maintain that plaintiffs have failed to allege the requisite level of culpability to justify the award of punitive damages. They contend that Rhode Island law only allows an action for punitive damages where the defendant's conduct is so wicked that it amounts to criminality. Second, defendants assert that CERCLA § 107 does not permit private parties to recover damages—punitive or otherwise — but only allows their recovery of "response" costs. Therefore, defendants have moved for dismissal of both these punitive damages claims.
Plaintiffs filed an objection to defendants' motion to dismiss on August 31, 1988. This Court entertained oral argument from the parties on November 30, 1988 and took the matter under advisement. It is now in order for decision.
Plaintiffs' § 310 CERCLA, 42 U.S.C. § 9659, claim must be dismissed for two reasons. First, plaintiffs have failed to fulfill the section's sixty-day notice provision. Second, § 310 does not permit a private action for recovery of damages or reimbursement of response costs.
Plaintiffs have brought Count II of their action pursuant to § 310(a)(1) of CERCLA, 42 U.S.C. § 9659(a)(1). Section 310(d), 42 U.S.C. § 9659(d), entitled "Rules applicable to subsection (a)(1) actions," provides in part:
Plaintiffs did not give notice to the President or to the State of Rhode Island at least sixty days prior to commencing this suit. Therefore, their action under Count II of the complaint must be dismissed. Cf. Garcia v. Cecos International, Inc., 761 F.2d 76, 78 (1st Cir.1985) ().
Plaintiffs maintain that this Court should, in effect, waive the requirement that they give sixty-day notice to the President and to the State. They contend that since they are seeking reimbursement of cleanup costs directly from the alleged violators, the relief they seek does not require Environmental Protection Agency ("EPA") or state involvement. Therefore, plaintiffs argue that notification to the federal and state governments is a mere formality and that they have substantially complied with § 310 of CERCLA. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir.1986) ().
Plaintiffs' argument for waiver of the sixty-day notice requirement highlights an important distinction between CERCLA § 310 and CERCLA § 107, and brings us to the second reason that plaintiffs may not maintain their § 310 claim. That is that § 310 does not provide a private right of action for response costs as does § 107. The purpose of § 310, discussed more fully below, is not to reimburse citizens for out-of-pocket expenses, but to prod government agencies into vigorously enforcing CERCLA and to allow private actions to compel compliance when the EPA and state still fail to act. While § 107 concerns liability and compensation for pollution, § 310 is aimed at coercing governmental enforcement of hazardous waste laws. Therefore, the reasoning of Dedham Water does not apply and plaintiffs' failure to give adequate notice is not excused.
Section 310 of CERCLA does not provide a private right of action for one seeking reimbursement for cleanup costs. Both the statutory language and legislative history of § 310 as well as an examination of other CERCLA provisions demonstrates that § 310 was merely intended to goad stricter compliance with, and enforcement of, hazardous waste laws.
Plaintiffs brought Count II of their action pursuant to CERCLA § 310(a)(1), 42 U.S.C. § 9659(a)(1), entitled Citizens Suits — Authority to Bring Civil Actions. That section reads in relevant part:
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