Drew Chemical's expansive interpretation of "state."
The fact, moreover, that Congress, in other statutes, has defined "state" broadly to include municipalities is of no moment since here it has not done so. Moreover, in other sections of CERCLA, Congress clearly refers to "municipalities," "local governments," and "political subdivisions," see, e.g., 42 U.S.C.A. § 9601(21) ("person" defined to mean, among other things, a municipality and political subdivision of a state); 42 U.S.C.A. § 9605(4) (referring to the "Federal, State, and local governments"), thereby suggesting both that the omission of municipalities from the definition of "state" was not accidental and that Congress had no intention of implicitly including municipalities within the word "state".
See Ohio Manufacturers' Ass'n, 801 F.2d at 829 (concluding, based in part on the fact that political subdivisions are referred to in other sections of the OSH Act, that Congress did not simply neglect to include political subdivisions from its express preemption). Finding no support in the statute for the argument that "state" should be read to mean "municipality," I am unwilling to ascribe such a definitional intent to Congress in its drafting of section 107(a)(4)(A).
Although I do not consider CERCLA's definition of "state" to be ambiguous, I am also unable to uncover any support in the legislative history of CERCLA for the proposition that Congress intended municipalities to recover their response costs as "states" pursuant to section 107(a)(4)(A) rather than as "any other person" pursuant to section 107(a)(4)(B).
While, for policy purposes, such an approach might arguably seem wise, I decline to substitute my judgment for that of Congress. As the wording of section 107(a)(4)(A) clearly and unambiguously refers only to recovery of costs incurred by the "United States Government" or a "State," and as there is no clearly expressed legislative intention to the contrary, I must regard the language used to be conclusive. In re Lorraine Johnson-Allen, 871 F.2d 421, 1989 U.S. App. LEXIS 3717;Bankr. L. Rep. (CCH) P72,820; 20 Collier Bankr. Cas. 2d (MB) 966; 19 Bankr. Ct. Dec. (CRR) 280 (3d Cir. 1989) (quoting National Freight, Inc. v. Larson, 760 F.2d 499, 503 (3d Cir.), cert. denied, 474 U.S. 902, 88 L. Ed. 2d 227, 106 S. Ct. 228 (1985)).
I would also hesitate to find the decision in Drew Chemical to be, as the City urges, "dispositive" of the issue before me, namely, who has the burden of proving consistency or inconsistency with the NCP. The district court in Drew Chemical did not address this question and its decision to allow the town of Boonton to proceed as a state under section 107(a)(4)(A) was undoubtedly influenced by its corollary decision that municipalities should be able to recover for damage to their natural resources under section 107(a)(4)(C). In this case, the City, in contrast, has made no claim for damage to natural resources and does not seek to proceed pursuant to section 107(a)(4)(C).
See 42 U.S.C.A. § 9607(f) (no recovery for damage to natural resources where the release of hazardous substances causing the damage occurred wholly before the enactment of CERCLA on December 11, 1980). For this additional reason, I do not find Drew Chemical to be controlling with regard to placing the burden of proof.
Finally, the City contends that because it received approval from the Environmental Protection Agency (EPA) and CERCLA funds for the second phase of its cleanup at the Enterprise Avenue landfill, its cleanup efforts should be entitled to the presumption of consistency with the NCP.
I cannot agree. Section 104(d)(1) of CERCLA
authorizes the federal government to enter into contracts or cooperative agreements with a state or political subdivision to take Superfund-financed response action when the federal government determines that the state or subdivision has the capability to undertake such actions. 42 U.S.C.A. § 9604(d)(1). See 40 C.F.R. § 300.62. Once a state or political subdivision enters into a cooperative agreement with the federal government, it is eligible to receive partial reimbursement for its expenses from the Superfund. See 42 U.S.C.A. § 9604(c)(3). The fact, however, that a municipality receives Superfund monies to fund its cleanup efforts does not relieve that municipality of the burden, imposed by CERCLA, of proving that the measures it took were consistent with the NCP. The EPA's determination that a party to a cooperative agreement has the capability of conducting response efforts does not mandate that the specific efforts taken pursuant to that agreement should be presumed consistent with the NCP. The purpose of requiring a party other than the federal government or a state to prove that the costs it incurred were consistent with the NCP is to ensure that cleanups are conducted in a responsible and cost-effective manner. CERCLA, as drafted, affords only the federal government and states the presumption of consistency with the NCP.
The City must therefore prove that the response costs it incurred in both Phase I and Phase II of its cleanup at the Enterprise Avenue landfill were consistent with the NCP in order to recover such costs from defendants.
An order follows.
AND NOW, this 11th day of April, 1989, for the reasons stated in the accompanying memorandum, it is hereby ordered:
1. The motion for partial summary judgment of plaintiff, City of Philadelphia, is denied.
2. The motion in limine of defendants is granted. The City shall bear the burden of proving that the response costs it incurred in the cleanup of the Enterprise Avenue landfill were consistent with the National Oil and Hazardous Substances Pollution Contingency Plan.
3. A pretrial conference shall be held on Thursday, April 27, 1989, at 9:00 a.m. to discuss final preparations for trial.
4. Counsel shall be prepared for trial on Monday, May 15, 1989.