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PICCOLINI v. SIMON'S WRECKING

March 22, 1988

Piccolini, et al., Plaintiffs
v.
Simon's Wrecking, et al., Defendants



The opinion of the court was delivered by: CONABOY

 Richard P. Conaboy, United States District Judge

 This is an action brought in 1986 by the owners of properties adjacent to the Iacavazzi landfill, otherwise known as the Old Forge Landfill, in Old Forge, Pennsylvania, (hereinafter referred to as "Landfill"). The Plaintiffs allege that their property has been contaminated as a result of waste placed at the landfill. The complaint in this action seeks relief under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. with pendent state claims for negligence, nuisance, trespass and strict liability. The Defendants in this action are the owner and operator of the landfill and numerous generators and haulers of the toxic waste which was disposed of in the landfill. This Memorandum will address the issues presented in the Defendants' motion to dismiss relating to the question of whether the Plaintiffs have incurred response costs necessary to support their CERCLA cause of action, and whether the pendent state law claims are insufficient as a matter of law and barred by the applicable statutes of limitations. For the reasons that follow we will deny the Defendants' motion to dismiss.

 The complaint in this case was filed on August 1, 1986. For the sake of clarity, the Court notes that a related action was brought in 1984, against the landfill operators and transporters with unidentified generators listed in the complaint only as "John Doe's."

 On October 20, 1986, Plaintiffs filed an amended complaint against 17 separate Defendants. The causes of action stem from the waste materials located at the landfill site in Old Forge, Pennsylvania. The Defendants are divided into three distinct groups:

 (1) The owners and operators of the site (hereinafter referred to as "Operator Defendants");

 (2) The transporters of the waste to the site (hereinafter referred to as "Transporter Defendants");

 (3) The generators of the waste purportedly disposed of at the site (hereinafter referred to as the "Generator Defendants").

 In response to the Plaintiffs' second amended complaint, the "Generator Defendants" have moved to dismiss every count of the complaint. Additionally, some of the Generator Defendants have moved in the alternative to a dismissal under Federal Rule of Civil Procedure 12, that the Plaintiffs supply them with a more definite statement.

 On June 4, 1987, this Court filed a management order requiring the Plaintiffs to submit "the substance of the testimony and evidence on which the Plaintiffs will rely to establish a prima facie case". In response to the material submitted by the Plaintiffs and their memorandum in support of their prima facie case, the Defendants filed a brief in opposition to the Plaintiffs' prima facie case. The Plaintiffs thereafter filed a reply to the brief in opposition to their prima facie case.

 FACTUAL BACKGROUND

 For a period of years preceding 1979, it is alleged that the Generator Defendants, acting directly through the Operator and/or Transporter Defendants, disposed of toxic and hazardous substances at the landfill site in Old Forge, Pennsylvania. The disposal of the above referenced hazardous materials at the landfill was alleged to be illegal and in violation of the permit issued by the Pennsylvania Department of Environmental Resources ("Pa.DER") to the owners and operators of the landfill. As a result of the said illegal activities, the Pa. DER ordered the landfill to be closed due to the severity of the landfill's contamination by the toxic substances and the resulting environmental threat to the surrounding area, the United States Environmental Protection Agency ("E.P.A.") has designated the landfill for inclusion on the National Priorities List of Hazardous Waste Sites pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 42 U.S.C. § 9601, et seq.

 Plaintiffs allege that they learned of the illegal disposal of hazardous and/or toxic waste at the landfill on or about 1979 and the said disposal constituted a dangerous condition to the Plaintiffs and their families.

 As a result of the presence of the hazardous substances deposited at the landfill, it is alleged that the surrounding environment, including the soil, air, and water have been seriously contaminated. For instance, the surface waters and soil, and the surrounding ground water supply is threatened by the migration of pollutants and contaminants emanating from the landfill. The land surrounding the landfill has been rendered unable to sustain the growth of trees, shrubs and foliage and grass which has resulted in increased "runoff" and soil erosion which allegedly still continues. These factors have contributed to the migration of contaminants to the surrounding surface waters, and thereby increase the concentration of toxic and hazardous substances contained in that water. The Plaintiffs further allege that the contaminated soils and surface water surrounding the landfill results in the release of vapors contaminating the air with various organic vapors and toxic gases.

 Plaintiffs ground their complaint on five separate theories. Count I is grounded on CERCLA and avers that the Defendants' acts or omissions caused contaminants to be released at the landfill which has caused Plaintiffs to incur response costs. Count II of the complaint sounds in strict liability, and alleges that the Defendants' dealings with the hazardous chemical wastes at the landfill comprised an abnormally dangerous and/or ultrahazardous activity which subjects the Defendants to strict liability for all the resultant harm. Count III sounds in negligence claiming the Defendants failed to take reasonable precautions so that the Plaintiffs' persons or property would not be contaminated by the hazardous waste or toxic substances. Count IV of the complaint alleges that the disposal of hazardous waste at the landfill created a nuisance causing the Plaintiffs substantial and unreasonable interference with the use and enjoyment of their property. Count V of the complaint alleges that the actions and inactions of the Defendants have caused an invasion by pollution of the Plaintiffs' interest in the exclusive possession of their land constituting a trespass.

 As a result of the actions of the Defendants, Plaintiffs allege that they have incurred expenses in an attempt to repair the physical damages to their property resulting from the above-described contamination, that the value of the Plaintiffs' property has been substantially diminished as a result of the contamination and its widespread media coverage, and that they have been forced to incur expenses relating to air, water, soil testing, as well as other cause related to transportation expenses and well monitoring. The Plaintiffs allege that the said costs are within the type of costs held recoverable under CERCLA by the courts.

 As indicated previously, the Defendants have moved that we dismiss some, if not all, of the counts pursuant to Fed.R.Civ.P. 12(b)(6). Accordingly, each count will be considered to determine whether it fails to state a claim upon which relief can be granted.

 CERCLA CLAIM

 Defendants have moved for the dismissal of Count I of the Plaintiffs' second amended complaint which seeks to recover "response costs" pursuant to CERCLA, 42 U.S.C. §§ 9601 et seq., as amended by the Superfund Amendment and Reauthorization Act of 1986, Pub.L.No. 99-499, 100 Stat. 1613 (SARA). Alternatively, Defendants request that this court rule that certain damages claimed by Plaintiffs are not recoverable under CERCLA since they do not constitute "response costs".

 With regard the types of costs allegedly incurred by the Plaintiffs, the amended complaint states:

 
72. As a result of said release of contaminants caused by defendants' acts or omissions, plaintiffs incurred, and have continued to incur, those "response costs" "necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances" or "necessary to prevent, minimize, or mitigate damage to the public health or welfare, or to the environment. . . . " 42 U.S.C. § 9601(23).
 
73. Said response costs were consistent with the National Contingency Plan. 40 C.F.R. 300 et seq.
 
74. Said response costs include, but are not limited to, expenses related to air, water, soil testing, cost of clean up, relocation expenses, transportation expenses, well-monitoring, and the loss of the use of wells, gardens, and property.
 
. . .
 
76. Pursuant to 42 U.S.C. § 9607(a)(4)(B) defendants are strictly and jointly and severally liable to plaintiffs for all costs incurred in responding to the release of contaminants caused by defendants' acts and omissions.

 Plaintiffs' second amended complaint, doc. 51, paras. 72-74, 76.

 Congress has defined removal actions as:

 
The clean-up for removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under Section 9604(b) of this Title, and any emergency assistance which may be provided under the Disaster Relief Act of 1974 [ 42 U.S.C.A. § 5121 et seq.].

 CERCLA Section 101 (23), 42 U.S.C. § 9601(23).

 Remedial actions were defined by Congress as:

 
Those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. . . .

 CERCLA Section 101 (24), 42 U.S.C. § 9601(24).

 It is clear from the above definitions that Congress intended the term "response costs" to encompass a broad range of activities and that the provisions defining ...


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