2 Hofstra Envtl. L. Dig. 1 (1985)

handle is hein.journals/hofe2 and id is 1 raw text is: HOFSTRA
ENVIRONMENTAL LA W DIGEST
A Publication of the Environmental Law Society
Hofstra University School of Law

HAZARDOUS WASTE
Pinole Point Properties, Inc. v. Bethlehem Steel Corp.,
596 F.Supp. 283 (N.D. Cal. October 22, 1984).
To date, there have been few decisions addressing the scope and
interpreting the provisions of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
9601 (1982). In one of the earliest cases to do so, the United States
District Court for the Northern District of California addressed the
meaning of CERCLA upon a prior landowners motion to dismiss
the . current landowners claims arising under CERCLA and
California state law.
The defendant, Bethlehem Steel Corporation, owned a piece of
property in Contra Costa County, California until February 1979.
In December 1979, the property was transferred to the plaintiff
from its parent company, Pinole Point Steel Company, the original
purchaser from Bethlehem Steel. The plaintiff, Pinole Point Prop-
erties (Pinole Point), alleged that the defendant released hazard-
ous substances into a pond on the property from 1965 to 1975.
Pinole Point filed suit seeking a declaratory judgment holding the
defendant liable for the plaintiffs past, present and future cleanup
costs at the site and Bethlehem Steel subsequently moved to dismiss
the plaintiffs claims.
With respect to Pinole Point's federal claims under CERCLA,
Bethlehem Steel argued that the complaint failed to state a cause of
action upon which relief may be granted because: (1) CERCLA
does not apply to sites the government has not acted upon or regu-
lated; (2) CERCLA does not provide for private causes of action for
damages to natural resources; (3) Pinole Point lacks standing to sue
under CERCLA; and (4) Pinole Point's CERCLA claims are not
ripe for adjudication.
United States District Court Judge Robert P. Aguilar rejected
Bethlehem Steel's arguments with respect to the federal claims. The
Court first noted that the principal issue before it was the
interpretation of CERCLA as a whole and  107 of the Act (codified
at 42 U.S.C. 9607) in particular. Section 107(a)(4), under which
Pinole Point seeks recovery, provides that the present owner of a
facility and the owner at the time of the hazardous waste release
shall be liable for.
(A) all costs of removal or remedial action incurred by the
United States Government or a State not inconsistent with the
(National Contingency Plan (NCP) I (B) any other necessary
costs of response incurred by any other person consistent with
the [NCP] and (C) damages for injury to. destruction of. or loss
of natural resources, including the reasonable costs of assessing
such injury, destruction, or loss resulting from such a release.
Bethlehem Steel urged the Court to interpret CERCLA narrowly
and argued that action taken under CERCLA in response to the
problem of hazardous waste sites ought to be governmental or
government-triggered. The Court rejected Bethlehem Steel's
analysis and cited two district court decisions, United States '.
Reilly Tar & Chemical. 546 F.Supp. 1100 (D. Minn. 1982), and
United States v. Wade, 577 F.Supp. 1326 (E.D. Pa. 1983), as
precedent for adopting a broad view of CERCLA as a
comprehensive response to the hazardous waste disposal problem.
Bethlehem Steel argued that 107 does not authorize a private
cause of action, rather 107 merely establishes liability for purposes
of  I 1- 112 which govern claims against theSuperfund. Because

112 requires that Superfund payments to private parties for
necessary response costs be certified by a federal official, Bethlehem
Steel contended that CERCLA envisions governmental action as a
condition precedent to any and all private liability. Consistent with
its broad interpretation of CERCLA, the Court refused to accept
Bethlehem Steel's argument and found that  107 provides a cause of
action distinct from that of l I1-112. The Court noted that the
opening clause of  107 and the language of  107 itself is extremely
broad and inclusive. Furthermore, relevant case law, e.g. Reilly Tar
& Chemical and United States v. Northeastern Pharmaceutical and
Chemical Co., 579 F.Supp. 823 (W.D. Mo. 1984), are cited as
supporting the finding that liability under  107 is independent of the
liability created under 1 I 112
Bethlehem Steel also argued that the 107 language requiring
recoverable costs to be consistent with the National Contingency
Plan is exactly the same as the requirement in 111 that costs
recoverable from the Superfund be incurred as a result of carrying
out the National Contingency Plan. Therefore, Bethlehem Steel
contended, Pinole Point's costs cannot be consistent with the
NCP because its costs were not incurred at the direction of the U.S.
Environmental Protection Agency (EPA), the federal agency
responsible for administering the Superfund law.
The Court acknowledged that there is a split of authority on this
point, citing Wickland Oil Terminals v. ASARCO, Inc., 590
F.Supp. 72 (N.D. CaL 1984), and Cadillac Fairview/California
Inc. v. Dow Chemical Co., CV-83-7996/CV-83-8034 [bench
opinion at 21 ERC 1108] (C.D. Cal. March 5, 1984), both as
support for Bethlehem Steers argument. Without discussing the
California courts' approach in either Wickland Oil or Cadillac
Fairview, the Court looked at the preamble to the National
Contingency Plan and the language of 107, 11l, and 112 and
concluded that [c]onsistency with the NCP and government pre-
authorization are thus distinct requirements, only the first of which
must be satisfied for recovery under section 107(a)(4)(B). 596
F.Supp. at 290. In doing so, the Court relied on City of Philadelphia
v. Stepan Chemical Co., 544 F.Supp. 1135 (E.D. Pa. 1982). It
Stepan Chemical, the Court refused to dismiss the plaintiffs 107
action, rejecting the defendant's argument that cleanups cannot be
consistent with the NCP unless the federal government has taken
some action with respect to the site. (In Cadillac Fairview, the Court
ruled that a purchaser of land on which hazardous substances had
been disposed cannot recover response costs under  107 absent
some sort of prior governmental action, e.g. the EPA commencing
a CERCLA action or placing the site on the National Priorities
List.) In refusing to dismiss Pinole Point's claims, Judge Aguilar
noted that whether the cleanup activities are consistent with the
NCP is a question of fact that must await development of a factual
record. Thus, the Court reserved its opinion on this issue pending a
determination as to the efficacy and cost-effectiveness of the cleanup
activities.
The Court then addressed Bethlehem Steel's claim that Pinole
Point lacked standing to sue under 107. Bethlehem Steel argued
that since Pinole Point was a potentially liable party under  I II-
112 it might be placed in the absurd position of having to bring an
action against itself. Having already determined that 107 provides
for a cause of action independent of I I-I 12, the Court rejected
Bethlehem Steel's argument and cited Stepan Chemical to support
its position. In Stepan Chemical, the Court concluded that the any

Vol. 2. No. I

Spring 1985

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?