Town of Bedford v. Raytheon Co.

• Decision Date: 15 January 1991
• Docket Number: Civ. A. No. 89-2313-WD.
• Citation: 755 F. Supp. 469
• Parties: TOWN OF BEDFORD, Plaintiff, v. RAYTHEON COMPANY, Massachusetts Port Authority, United States Department of the Air Force and United States Department of the Navy, Defendants.
• Court: U.S. District Court — District of Massachusetts

755 F. Supp. 469

TOWN OF BEDFORD, Plaintiff, v. RAYTHEON COMPANY, Massachusetts Port Authority, United States Department of the Air Force and United States Department of the Navy, Defendants.

Civ. A. No. 89-2313-WD.

United States District Court, D. Massachusetts.

January 15, 1991.

Robert M. Hacking, Calum B. Anderson, Parker, Coulter, Daley & White, Boston, Mass., Christopher L. Rissetto, Gary B. Cohen, Washington, D.C., for plaintiff.

William A. Zucker, Gadsby & Hannah, Boston, Mass., for Raytheon Co.

Peter S. Terris, William L. Lahey, Kathleen E. McGrath, Palmer & Dodge, Boston, Mass., for Mass. Port Authority.

George Henderson, Asst. U.S. Atty., for U.S. Dept. of the Air Force and U.S. Dept. of Navy.

MEMORANDUM

WOODLOCK, District Judge.

The defendants in this action, Raytheon Company, Massachusetts Port Authority, the U.S. Department of the Air Force, and the U.S. Department of the Navy, bring motions to dismiss Count II of plaintiff Town of Bedford's complaint which seeks recovery for natural resource damages under provisions of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(4)(C), (f)(1). The aquifer, which was formerly Bedford's principal drinking water source, is alleged now to be polluted by hazardous substances and unfit for human consumption. Bedford complains that each of the defendants engaged in activities that either used or generated hazardous substances which contaminated sites owned and/or operated by the defendants and leached into the aquifer eliminating the town's supply of potable water.

In support of the motions to dismiss now before me, the principal argument the defendants present is that Bedford, as a municipality, is not authorized to bring suit for natural resource damages.¹

In response, Bedford not only opposes the motion but seeks by its own motion for partial summary judgment an affirmative declaration that, although a municipality, it is entitled to the less demanding burden of proof applicable to a state in a CERCLA cost recovery action.

I.

CERCLA provides several avenues to obtain monetary recovery for specifically identifiable losses incurred in connection with the release of hazardous substances:

(a) Under 42 U.S.C. § 9607(a)(4)(A), "the United States Government or a State or an Indian tribe" may recover "all costs of removal or remedial action ... not inconsistent with the national contingency plan" (emphasis supplied) establishing procedures and standards for such response actions;

(b) Under 42 U.S.C. § 9607(a)(4)(B), "any other person" may recover "any other necessary costs of response ... consistent with the national contingency plan" (emphasis supplied); and

(c) Under 42 U.S.C. § 9607(a)(4)(C), "damages for injury to, destruction of, or loss of natural resources" may be recovered; however, liability for natural resource damages "shall be to the United States Government and to any State" and "the President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural resources to recover such damages," 42 U.S.C. § 9607(f)(1).

Thus—as between the United States Government and any State on the one hand, and any other person on the other — CERCLA provides differential access to remedies and differential burdens in establishing access to those remedies.

Bedford argues that the court should interpret the term "state" broadly to include political subdivisions of states. If Bedford, as a municipal subdivision of the Commonwealth of Massachusetts, were included within the definition of "state," it would (i) be authorized to maintain an action for natural resource damages under § 9607(a)(4)(C), and (ii) be the beneficiary of § 9607(a)(4)(A), which imposes on the defendants the burden of proving response costs were inconsistent with the National Contingency Plan ("NCP").²

The answer to Bedford's contentions begins with the relevant statutory definition. CERCLA defines "state" in the following way:

The terms "United States" and "State" include the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction.

42 U.S.C. § 9601(27). The plain language of CERCLA's definition of "state" does not encompass political subdivisions such as municipalities. "The entities that are explicitly included — states, the District of Columbia, Puerto Rico ... United States territories and possessions — differ so vastly from villages, towns, boroughs, townships, counties, and cities as to be words of exclusion." City of Philadelphia v. Stepan Chemical Co., 713 F.Supp. 1484, 1488 (E.D.Pa.1989). All the entities explicitly included in subsection (27) are sovereigns, and unlike municipalities, they do not depend on states to grant them power.³ By contrast, a "municipality" or other "political subdivision of a State" is explicitly included in the definition of "person" under § 9601(21), drawing such entities into the ambit of the "other person" whose entitlement to response costs, unlike that of "the United States Government, or a State or an Indian tribe" under § 9607(a)(4)(A), is determined by the more demanding burdens of § 9607(a)(4)(B).

In ordinary circumstances, the plain language of the statute would end the discussion of Bedford's contentions and dispose of its position that it is entitled to the statutory perquisites provided in CERCLA to a "State." There is, however, case law — antedating the 1986 amendments to CERCLA — which supports Bedford's position. That case law requires some analysis.

II.

Bedford relies on Mayor and Bd. of Aldermen v. Drew Chemical Corp., 621 F.Supp. 663 (D.N.J.1985), and City of New York v. Exxon Corp., 633 F.Supp. 609 (S.D. N.Y.1986), each of which held that a municipality was a "State" for purposes of bringing a natural resource damages action. Both courts found policy reasons for a broad reading of the word "state" to assimilate municipalities within it. The Drew Chemical court looked to the remedial purpose of CERCLA and concluded:

It would be anomalous for this far reaching remedial statute to give states a cause of action for damages to natural resources owned by the State but for it to exclude cities from access to such a cause of action while expressly including resources owned by "local governments" within the scope of the protected subject of § 9607(a)(4)(C).

621 F.Supp. at 666. Drew Chemical thus determined "to expand the illustrative list introduced by the word `includes' to encompass" municipalities. Id. at 667.⁴

The Exxon court reached a similar conclusion:

Since the statute specifically includes within its ambit "natural resources" which are under the control of local governments, the Act's broad remedial intention is not furthered by a reading which requires the State, which is not the government charged with managing and conserving those resources, to bring suit to recover for damages done to them. The clear purpose of the Act, which is to ensure prompt and effective cleanup of hazardous wastes and the restoration of environmental quality, is not advanced by preventing the authorities entrusted with the management of public resources from bringing actions to recover the cost of protecting them.

633 F.Supp. at 619 (footnote omitted); see also, City of New York v. Exxon Corp., 112 B.R. 540, 545 (S.D.N.Y.1990) (later proceeding reconfirming holding that municipality "does have standing as a governmental plaintiff under Sections 107(a)(4)(A) and (C) of CERCLA").

To be sure, CERCLA is a "far reaching remedial statute," Drew Chemical, 621 F.Supp. at 666, whose "clear purpose ... is to ensure prompt and effective cleanup of hazardous wastes and the restoration of environmental quality," Exxon, 633 F.Supp. at 619. But that purpose must be achieved within the framework of legislation designed to secure other goals as well. The statute evidences, as Judge Ditter observed in Stepan Chemical, "a concern on the part of Congress that unwise and excessive cleanup activity be restrained." 713 F.Supp. at 1488 n. 12. To effect this, the statute distinguishes between costs associated with response actions undertaken by the "United States Government or a State," which may be avoided by defendants only if the defendants can show they are not consistent with the NCP, 42 U.S.C. § 9607(a)(4)(A), and those response action costs incurred by "any other person" as to which that "other person" must bear the burden of showing consistency with the NCP before recovery is allowed. 42 U.S.C. § 9607(a)(4)(B).

The structure of the statute, in short, demonstrates a differential willingness to indulge a presumption that response action costs are recoverable. For those actions undertaken by entities cloaked with sovereignty, the burden is shifted to the defendants to avoid assessment; for those actions undertaken by entities without the attributes of sovereignty, the burden remains upon them to establish entitlement. Moreover, it is only those entities with the requisite degree of sovereignty which may recover natural resource damages at all.

This structural differentiation between entities with the qualities of full sovereigns and "other persons" was clarified by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), which created a mechanism for states to appoint natural resource trustees to bring lawsuits seeking natural resource damages. Prior to SARA, a policy-driven, expansive interpretation of the word "State," designed to include local governments, was the only way a municipality could bring a natural resource damages action under CERCLA. In SARA, Congress provided an express means for states to bring natural resource damage actions by permitting the states to designate "natural resource trustees." 42 U.S.C. § 9607(f). Section...