Utah State Dept. of Health v. Ng, Civ. No. C86-0023G.

• Citation: 649 F. Supp. 1102
• Decision Date: 24 November 1986
• Docket Number: Civ. No. C86-0023G.
• Parties: UTAH STATE DEPARTMENT OF HEALTH, Plaintiff, v. Peter NG, Questar Corporation, et al., Defendants.
• Court: U.S. District Court — District of Utah

649 F. Supp. 1102

UTAH STATE DEPARTMENT OF HEALTH, Plaintiff, v. Peter NG, Questar Corporation, et al., Defendants.

Civ. No. C86-0023G.

United States District Court, D. Utah, C.D.

November 24, 1986.

Lawrence H. Edelman, Salt Lake City, Utah, for plaintiff.

Marilyn G. Alkire, Denver, Colo., Raymond C. Marshall, of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on October 3, 1986, on defendants' Huntsman-Christensen Corporation, Ladd E. Christensen and A. Blaine Huntsman, Jr., (collectively "Huntsman-Christensen") Motion to Dismiss plaintiff's First Amended Complaint. Defendants McCall Oil and Chemical Corporation, McCall Properties, Inc., and Great Western Chemical Company (collectively "Great Western") joined in Huntsman-Christensen's Motion to Dismiss. Plaintiff was represented by Lawrence H. Edelman, Assistant Attorney General, State of Utah; Huntsman-Christensen was represented by Marilyn G. Alkine of the firm of Holme, Roberts & Owen, and Great Western was represented by Raymond C. Marshall, of the firm of McCutchen, Doyle, Brown & Enersen. Counsel for the parties submitted memorandums of law and presented extensive oral argument, after which the matter was taken under advisement. The court now being fully advised sets forth its Memorandum Decision and Order.

BACKGROUND

In this action plaintiff, the Utah Department of Health, seeks recovery of costs and injunctive relief for the purpose of investigating and cleaning up toxic waste alleged to exist at 1979 South 700 West in Salt Lake City, Salt Lake County, Utah ("the Site"). Each of the defendants in this case have at some time held an interest in the Site. Plaintiff specifically seeks declaratory and injunctive relief pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607 (1982); Section 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.A. § 6972 (Supp.1985); and under several pendent state law claims. Defendants assert that the CERCLA and RCRA claims must be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and that the pendent state claims must thereafter be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(6)(1). In the alternative, defendants seek dismissal of plaintiff's CERCLA claim to the extent that the Complaint seeks injunctive relief.

LEGAL ANALYSIS

1. CERCLA CLAIMS — SIXTY DAY NOTICE

Under CERCLA Congress created the Hazardous Substance Response Trust Fund ("Superfund") to enable parties to take immediate action for pollution abatement. See New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2nd Cir.1985). To recover against the Superfund a party must first demonstrate compliance with the sixty day notice of claim requirement imposed by Section 112(a) of CERCLA:

All claims which may be asserted against the Fund pursuant to section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 9607 of this title. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor, or other person or to present the claim to the Fund for payment.

42 U.S.C. § 9612(a) (1982) (emphasis added).

The issue raised by defendants is whether the sixty day notice requirement also applies to actions for direct recovery against responsible parties under Section 107 of CERCLA, 42 U.S.C. § 9607 (1982). There is a clear split of authority on that issue,¹ and the Tenth Circuit has not yet had occasion to rule on the matter. The parties urge opposing public policy considerations in support of their respective positions.² Although courts on both sides of the issue find support in the legislative history, Congress has now responded, making it clear that the notice requirement in section 112(a) of CERCLA applies only to the Fund.³ Defendants argue that the amendment does not have retroactive effect and that a statement in the Conference Report supporting the view that the sixty day notice never applied to Section 107 actions is only one opinion, which is contrary to the weight of authority.⁴

This court is convinced that at the time CERCLA was first passed Congress intended that the notice of claim requirement apply only to actions asserted against the Superfund, and not to direct recovery actions under Section 107. Accordingly, it is not necessary for this court to consider whether the aforesaid amendment has only prospective effect. Even if the notice requirement could be said to apply to Section 107, however, this court follows and agrees with Colorado v. Asarco, Inc., 616 F.Supp. 822, 825 (D.Colo.1985) wherein Judge Carrigan held the notice requirement not to be jurisdictional.⁵

2. CERCLA CLAIMS—INJUNCTIVE RELIEF

Defendants seek to have plaintiff's Section 107 CERCLA claim dismissed as to asserted injunctive relief. Defendants' argument is that under the statutory framework created by Congress, only the federal government is expressly given the power to seek injunctive relief and therefore it would defeat Congressional intent for this court to grant such relief to non-federal parties. It is argued that under 42 U.S.C. § 9606 (1982) Congress expressly authorized the President to seek injunctive relief to abate "an actual or threatened release of a hazardous substance from a facility ...," but that under 42 U.S.C. § 9607 (1982), the statutory basis for plaintiff's CERCLA claim, Congress limited relief to "response" costs and "damages for injury to, destruction of, or loss of natural resources...." In New York v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir.1985) the Second Circuit adopted defendants' position. The court in Shore held that "implying the authority to seek injunctions under section 9607 would make the express injunctive authority granted in section 9606 surplusage." Id. at 1049. The Shore court also pointed out that the standard for seeking abatement under section 9606 is narrower than under 9607 and therefore the implied equitable relief would conflict with the express limits imposed by Congress in section 9606. Finally, the court in Shore recognized that early versions of CERCLA granted power to the President and to the states to seek injunctive relief, but that the final compromise legislation left such power only in the hands of the President.

Plaintiff argues that based upon the Supreme Court's pronouncement in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the court in Shore applied the wrong standard in analyzing CERCLA and its legislative history:

Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction."

Id. at 398, 66 S.Ct. at 1089 (citing Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508) (emphasis added). See also Califano v. Yamasaki, 442 U.S. 682, 704, 99 S.Ct. 2545, 2559, 61 L.Ed.2d 176 (1979) ("Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions over suits in which they have jurisdiction"). Plaintiff argues that under the standard set forth in Porter, Congress did not necessarily and inescapably preclude the exercise of equitable power under 42 U.S.C. § 9607 (1982).⁶

This court considers that Congress expressly and inescapably limited injunctive power under the statute to the President. Accordingly, we hold that no implied authority exists under § 9607 to issue injunctive relief. Plaintiff's CERCLA claim is therefore dismissed insofar as it requests injunctive relief pursuant to Section 9607 of CERCLA.

3. RCRA CLAIMS

Section 7002 of the Resource Conservation And Recovery Act ("RCRA"), 42 U.S. C.A. § 6972 (Supp.1985) contains the so-called "citizen suit" provision which allows "any person" to bring a civil action against parties who have allegedly handled solid or hazardous waste in a manner that results in an imminent or substantial endangerment to health or to the environment. If plaintiff is to proceed with its RCRA claim this court must hold in its favor on four issues: (1) the State of Utah can bring suit under the citizen suit provision; (2) the ninety day notice of endangerment provision has no application to a state which brings an action under the citizen suit provision of RCRA, or in the alternative the notice of endangerment is not a jurisdictional prerequisite to suit and plaintiff has adequately alleged procedural compliance; (3) the Environmental Protection Agency ("EPA") is not actually engaging in activities on the site of a nature that would prohibit a citizen suit from being brought; and (4) the State of Utah is not engaging in activities on the site of a nature that would prohibit a citizen suit from being brought. We will deal with each of those issues in order.

As to the first matter, the reference to "any person" under Section 7002 of RCRA, 42 U.S.C. § 6972 (Supp.1985) is broad and unrestricted in scope. On its face, we hold that it encompasses a suit by the Utah State Department of Health.

As to the contention that the ninety day notice of endangerment provision has no application to the State, the statute is equally broad. The law requires that notice be given to "(i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed...." 42...