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FISHEL v. WESTINGHOUSE ELEC. CORP.

October 1, 1985

DOUGLAS FISHEL, SR., et al., Plaintiffs
v.
WESTINGHOUSE ELECTRIC CORPORATION, et al., Defendants


Caldwell, District Judge.


The opinion of the court was delivered by: CALDWELL

I. Introduction

 Defendant, Westinghouse Electric Corporation (Westinghouse), has filed a motion to dismiss. The numerous plaintiffs in this action oppose that motion and have filed their own motion for partial summary judgment. Plaintiffs are neighbors of Westinghouse's plant in Gettysburg, Pennsylvania, and of sites used by defendant, Frederick M. Shealer, to dispose of industrial wastes generated at the Gettysburg plant. The complaint alleges, inter alia, violations of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C § 9601 et seq. (CERCLA), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (RCRA), and the Clean Water Act of 1977, 33 U.S.C. § 1251 et seq. (CWA), in connection with the disposal of the wastes.

 II. Discussion

 A. Procedural Aspects of the Motions.

 Before turning to the merits of the motions, we will address some procedural aspects raised by defendant. First, as defendant correctly points out, because it has submitted an affidavit in support of its motion to dismiss, we should treat that motion as a motion for summary judgment. See Fed. R. Civ. P. 12(b). Defendant also points out some defects in plaintiffs' motion. It argues that the exhibits and affidavit submitted by plaintiffs in support of their counter-motion for summary judgment are defective in the following respects. The documents, consisting of governmental reports and letters concerning the various sites, allegedly cannot be considered because they were not authenticated. Plaintiffs have cured that defect in their reply brief, however, by submitting affidavits from appropriate governmental officials, attesting to their authenticity and that they are copies of official reports.

 Defendant, next argues that the affidavit of Michael C. Havener, plaintiffs' expert, is defective because: (1) he makes legal conclusions on ultimate issues; (2) he invades the fact finders' role by actually weighing the evidence; (3) his conclusions are often tentative and not based upon any standard of reasonable scientific certainty and; (4) generally, expert opinion should not form the basis of a summary judgment motion.

 We turn now to the merits of the motions.

 B. Plaintiffs Do Not Need Prior Governmental Approval to Assert a CERCLA Claim.

 The CERCLA claim against Westinghouse is predicated upon 42 U.S.C. § 9607(a) (2), (3) and 4(B) which provides, in pertinent part, as follows:

 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
(3) any person who by contract, agreement or otherwise arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, . . . shall be liable for --
 
. . . .
 
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan . . . .

 Plaintiffs allege that this section authorizes their private lawsuit against Westinghouse and other responsible defendants for recovery of their response costs. Westinghouse, conceding that the section creates a private cause of action, nevertheless, contends that for the recovery to be "consistent with the national contingency plan," plaintiffs must first obtain governmental approval from the federal or state government of their response costs before seeking recovery from persons made responsible under CERCLA. *fn1"

 There is a split of authority in the district courts concerning this issue. Some courts have held that governmental approval of the private party's plan for cleaning up the hazardous wastes is necessary prior to bringing suit. See, e.g., Artesian Water Co. v. Government of New Castle County, 605 F. Supp. 1348 (D. Del. 1985) (requiring governmental approval for long term remedial action); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437 (S.D. Fla. 1984); Wickland Oil Terminals v. Asarco, Inc., 590 F. Supp. 72 (N.D. Cal. 1984). Others have held that such prior approval is not necessary. See Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F. Supp. 283 (N.D. Cal. 1984); Homart Development Co. v. Bethlehem Steel Corp., 22 Env't Rep. Cas. (BNA) 1357 (N.D. Cal. 1984).

 Courts that have required prior government approval have generally relied upon provisions in the NCP detailing appropriate governmental action in connection with a hazardous waste site as well as general policy considerations leading the court to conclude that the government should be involved in any response action, governmental or private. Bulk Distributions Centers is illustrative. There, the court noted that, in dealing with the release of a hazardous substance, the "lead agency" (federal or state) must make a preliminary assessment of the release, 40 C.F.R. § 300.64, and that the agency continues under the regulations to have an active role in developing a response to the problem. Further, the court reasoned that, in its view:

 
The only practical way to safeguard the public's interest, while fairly mediating the competing concerns of the parties potentially responsible for cleaning up the release, is for the government to approve the clean-up proposal before it is implemented by the private parties.

 Id. at 1446 (brackets added).

 Homart Development Corp., supra, exemplifies the opposite position. There, the court concluded that prior governmental approval was not necessary because CERCLA contemplated a "dual approach to the cleaning up of hazardous wastes," 22 Env't. Rep. Cas. at 1367: (1) federally funded clean-up of waste sites and (2) because federal funds were limited, private clean-ups funded by lawsuits against private parties. The liberal purpose of the Act in attempting to clean up environmental hazards would be fulfilled by permitting private actions with the question of whether the costs were consistent with the national contingency plan to be resolved at trial.

 The Bulk Distributors approach is not without its merits but we believe that the courts in Homart Development Corp. and Pinole Point Properties, Inc., supra, have adopted the better view. It places the clean up of hazardous waste sites upon the responsible parties without placing a financial burden upon the government. In this regard, it is significant that prior governmental approval is only specifically required in the Act when reimbursement for response costs is sought from the government. See 42 U.S.C. § 9611 (a)(2).

 Our interpretation of CERCLA is in accord with the EPA's recent, proposed modifications of the NCP. Those modifications clearly would not require a private party to seek EPA approval before instituting a response cost recovery action against responsible parties. See 50 Fed. Reg. 5,879 (1985) (to be codified at 40 C.F.R. § 300.61(e)). Compare Artesian Water Co., supra (prior governmental approval required based, in part, on interpretation of current regulations indicating that EPA had rejected unlimited right of individuals to sue for response costs).

 C. Group IV Has Alleged That They Have Incurred Response Costs.

 Group IV consists of neighbors who reside near the Hunterstown Road site and who have not experienced any contamination of their wells. Defendant contends that they cannot maintain a CERCLA action because they have not alleged that they have incurred some response costs. Such response costs are necessary before a CERCLA action can be brought. See Bulk Distribution Centers, supra. While the complaint is not as clear as might be desired in this regard, we believe that it adequately sets forth a claim that Group IV has, in fact, incurred response costs (see complaint, para. 307) and accordingly sets forth a valid CERCLA claim.

 D. Plaintiffs' Gave Proper Notice of Their RCRA and CWA Causes of Action.

 Section 7002(b)(1) authorizes a private cause of action under RCRA provided that "no action may be commenced" under that section "prior to sixty days after the plaintiff has given notice of the violation . . . to any alleged violator." 42 U.S.C. § 6972 (b)(1). The CWA contains a similar provision. See 33 U.S.C. § 1365(b) (1) (A). Defendant contends that the claims under these Acts should both be dismissed because the combined notice it received of them was deficient. In support of dismissal of the RCRA claims, defendant also cites the notice regulation contained in 40 C.F.R. § 254. For dismissal of the CWA claim, Westinghouse cites Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975), aff'd mem. 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977).

 In construing the statutory notice provisions, we are guided by Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504 (3d Cir. 1985). There, discussing the notice provisions at issue in the case ...


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