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CITY OF PHILADELPHIA v. STEPAN CHEM. CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 11, 1989

CITY OF PHILADELPHIA, et al.
v.
STEPAN CHEMICAL COMPANY, et al.; CITY OF PHILADELPHIA, et al. v. CONGOLEUM CORPORATION, et al.

The opinion of the court was delivered by: DITTER, JR.

MEMORANDUM AND ORDER

 J. WILLIAM DITTER, JR., SENIOR UNITED STATES DISTRICT JUDGE:

 Plaintiff, City of Philadelphia, has moved for partial summary judgment with regard to whether the City, as a municipality, is a "state" within the meaning of section 107(a)(4)(A) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. § 9607(a)(4)(A) (1983 & Supp. 1988). *fn1" The City contends that it should be considered a state for purposes of this litigation, thereby placing the burden on defendants of proving that the response costs *fn2" incurred by the City in cleaning up the hazardous substances illegally dumped by defendants at the City's Enterprise Avenue landfill *fn3" were inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). *fn4" The defendants have answered the City's motion and have themselves filed a motion in limine *fn5" seeking an order that the City is not a "state" within the meaning of section 107(a)(4)(A) and, therefore, bears the burden of proving that the response costs it incurred were inconsistent with the NCP. For the reasons which follow, I will deny the City's motion for partial summary judgment and grant defendants' motion in limine.

 Sections 107(a)(1) through (4) define who may be liable as a covered party under CERCLA and provide that these responsible parties may be liable for the following costs:

 

(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;

 

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; 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.

 42 U.S.C.A. § 9607(a)(4)(A)-(a)(4)(C). As the language of the statute makes clear, actions brought by the federal government or a state to recover costs pursuant to section 107(a)(4)(A) are distinguished from those actions brought by "any other person" *fn6" to recover costs pursuant to section 107(a)(4)(B). In an action by the federal government or a state pursuant to section 107(a)(4)(A), the burden is on the defendant to prove that the removal or remedial actions undertaken by the federal government or the state were inconsistent with the NCP. United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 746 (8th Cir. 1986), cert. denied, 484 U.S. 848, 108 S. Ct. 146, 98 L. Ed. 2d 102 (1987). Thus, the cleanup activities of the federal government and the states are entitled to a presumption of consistency which the defendant must overcome. The cleanup activities of "any other person," however, are not similarly presumed to be consistent with the NCP, and a private party must prove, as an element of its prima facie case under section 107(a)(4)(B), that the costs incurred were consistent with the NCP. Northeastern Pharmaceutical, 810 F.2d at 747; Artesian Water Co. v. Gov't of New Castle County, 659 F. Supp. 1269, 1278-79 (D. Del. 1987), aff'd, 851 F.2d 643 (3d Cir. 1988).

 In support of its argument that it should be considered a state under section 107(a)(4)(A) and thus entitled to the presumption that its cleanup activities were consistent with the NCP, the City relies upon the decision in The Mayor and Board of Alderman of the Town of Boonton v. Drew Chemical Corp., 621 F. Supp. 663 (D.N.J. 1985). In Drew Chemical, town officials filed suit pursuant to sections 107(a)(4)(A) and 107(a)(4)(B) of CERCLA for recovery of costs incurred in the cleanup of a toxic waste site. *fn7" 621 F. Supp. at 665. The suit also sought recovery of damages for injury to natural resources pursuant to section 107(a)(4)(C). Id. Drew Chemical moved for summary judgment on the basis that the town was not a state for purposes of recovery under either section 107(a)(4)(A) or section 107(a)(4)(C). Id. at 666. Denying the motion, the district court held that municipalities such as the town of Boonton are "within the scope of the entities Congress entrusted with standing both to recover costs for cleanup under § 9607(a)(4)(A) as well as to sue for damages for injury to destruction of, or loss of natural resources under § 9607(a)(4)(C) of CERCLA." Id. at 667. The court found that, although cities and municipalities are not within the definition of "state" under CERCLA, *fn8" the use of the word "include" in the definition of the term "explicitly contemplates an expansion of the illustrative list by the courts to the fullest extent where to do so would be consistent with the remedial intent of the Act." Id. at 666. Noting that Congress "has frequently defined 'state' broadly to mean the fifty states and a variety of other governmental subdivisions and entities such as municipalities," the court concluded that "it is reasonable to expand the illustrative list introduced by the word 'includes' to encompass entities frequently explicitly within the meaning of the term 'state' as legislatively defined." Id. at 667. The court further noted that, although section 107(f) of CERCLA provides that liability under section 107(a)(4)(C) "shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State," *fn9" "natural resources" itself is defined in CERCLA to mean "resources belonging to . . . the United States . . . any State or local government, or any foreign government." *fn10" In light of CERCLA's definition of "natural resources," the court found it would be "anomalous . . . to give states a cause of action for damages to natural resources owned by the State but . . . to exclude cities from access to such a cause of action while expressly including resources owned by 'local governments' within the scope of the protected subject of § 9607(a)(4)(C)." Id. at 666. The court further noted that the town of Boonton could be considered to be the "authorized representative" of the state under section 107(f) and, in this capacity, could recover on its natural resources claim under section 107(a)(4)(C). Id. at 668. See City of New York v. Exxon Corp., 633 F. Supp. 609, 619 (S.D.N.Y. 1986) (allowing city to proceed pursuant to section 107(a)(4)(C) to recover for damage to natural resources). Considering the broad remedial purpose of CERCLA, the court thus held that the town could proceed pursuant to both section 107(a)(4)(A) and (C). Id.

 Although I agree with the district court in Drew Chemical that the provisions of CERCLA must be liberally construed so as to effectuate the statute's broad remedial purpose, nonetheless, with regard to the burden of proving consistency with the NCP, I cannot construe section 107(a)(4)(A) to allow a municipality to proceed as a state when there is no support in either the statutory language or the legislative history of CERCLA for such a result. In attempting to discern the intent of Congress in enacting a particular statutory section, I must examine the language of the statute and, if there is ambiguity, the policy behind it. *fn11" The starting point is always the plain meaning of the words used and plainly, CERCLA's definition of the term "state" does not include the word "municipality." The entities that are included -- states, the District of Columbia, Puerto Rico, Guam, Samoa, the Virgin Islands, the Marianas, and United States territories and possessions -- differ so vastly from villages, towns, boroughs, townships, counties, and cities as to be words of exclusion. Even accepting the broad remedial purpose of CERCLA, there is simply nothing in the statute to suggest that Congress intended to allow municipalities to recover their response costs by proceeding under section 107(a)(4)(A) rather than by proceeding as a private party under section 107(a)(4)(B). *fn12" In Ohio Manufacturers' Ass'n v. City of Akron, 801 F.2d 824 (6th Cir. 1986), plaintiffs argued that an ordinance passed by the city of Akron regulating hazardous and toxic substances in the workplace was preempted by the federal Occupational Safety and Health Act (OSH Act) which expressly preempts such regulation by states. The plaintiffs contended, relying on Drew Chemical, that by using "includes" in defining "state," Congress had intended an expansive reading of the definition of the word and, thus, that the city's regulation was preempted under the OSH Act. Id. at 828-29. The trial court, and the Sixth Circuit on appeal, rejected plaintiffs' argument that the presence of the word "includes" should be interpreted to suggest that Congress intended "states" to encompass their political subdivisions. Id.13 I agree with the Sixth Circuit and reject the City's reliance in this case on 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". *fn14" 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). *fn15" 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). *fn16" 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. *fn17"

 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. *fn18" I cannot agree. Section 104(d)(1) of CERCLA *fn19" 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. *fn20" 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. *fn21" An order follows.

 ORDER

 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.


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