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LUTZ v. CHROMATEX

June 9, 1989

CARL LUTZ and DEBORAH LUTZ, et al., Plaintiffs,
v.
CHROMATEX, INC., et al., Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, UNITED STATES DISTRICT JUDGE

 Currently before the court in this action filed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA), and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (RCRA), are defendants' motions to dismiss plaintiffs' amended complaint. For the reasons that follow, defendants' motions to dismiss will be granted in part and plaintiffs will be required to file a second amended complaint.

 BACKGROUND

 This civil action was commenced on behalf of sixty-six (66) plaintiffs by a complaint filed on October 21, 1988. Before defendants' response time had elapsed, plaintiffs filed an amended complaint. See document 27 of record. The amended complaint consists of nine counts alleging causes of action against the various defendants under CERCLA, RCRA, and Pennsylvania common law.

 According to the allegations in the amended complaint, which are accepted as true for purposes of the present motions, plaintiffs are residents or former residents of homes and apartments in West Hazleton, Pennsylvania. During October and November of 1987, the Pennsylvania Department of Environmental Resources (DER) conducted analytical tests of the private drinking water wells being used by plaintiffs. These tests revealed that the wells had been "permanently contaminated with significant concentrations of highly toxic chemicals, including . . . trichloroethylene . . ., dicholoroethylene . . ., trichlorofluoromethane and methylene chloride." See id. at para. 52. Plaintiffs were exposed to these highly toxic chemicals through ingestion, inhalation, and skin absorption. Based on this contamination, the Environmental Protection Agency (EPA) determined the situation to comprise an immediate and substantial endangerment to the health of plaintiffs and others affected by the contamination. Id. at para. 56.

 Plaintiffs allege that the contamination of their homes and their personal exposure to toxins resulted from releases of toxic chemicals caused by culpable acts and omissions of defendants, their agents, servants, and employees. See id. at para. 57-65. As a result of this contamination, plaintiffs contend that they have suffered and will continue to suffer harm and expenses, including response costs (as defined in CERCLA), personal injury, damage to their property, medical expenses, annoyance, inconvenience, and disturbance, a disruption of their daily lives, a loss of the use and quiet enjoyment of their properties, an increased risk of cancer and other diseases, emotional distress, and other damages. Id. at para. 66. They seek compensatory damages, reimbursement for response costs, civil penalties, exemplary damages, costs, and interest as well as "an order that defendants, at defendants' expense, take such remedial actions as are necessary to abate the pollution of the environment in and around the Chromatex and Continental sites. . . ." Id. at pp. 28-29.

 Defendant Chromatex, Inc. filed its motion to dismiss on January 18, 1989. See documents 38-40 of record. A similar motion was submitted by defendant Continental White Cap, Inc. on February 13, 1989. See document 48 of record. Plaintiffs noted their opposition to the motions on February 2, 1989 and February 24, 1989, respectively. See documents 45, 46, and 55 of record. Defendant Chromatex filed its reply brief on February 15, 1989, and defendant Continental White Cap did the same on March 13, 1989. See documents 51 and 58 of record, respectively. *fn1" These motions are now ripe for disposition.

 DISCUSSION

 In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D.Pa. 1985) (Rambo, J.). Because plaintiffs assert several claims against defendants, each claim must be examined in seriatim to determine if that claim should withstand a motion to dismiss. Kuchka v. Kile, 634 F. Supp. 502, 506 (M.D.Pa. 1985) (Nealon, C.J.).

 CERCLA

 A. Response Costs

 In discussing a claim for response costs under CERCLA, the Third Circuit Court of Appeals has stated as follows:

 
CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage. Problems of interpretation have arisen from the Act's use of inadequately defined terms, a difficulty particularly apparent in the response costs area.

 See Artesian Water Co. v. Government of New Castle County, 851 F.2d 643, 648 (3d Cir. 1988), aff'g, 659 F. Supp. 1269 (D. Del. 1987). Nevertheless, in dealing with such a claim, it must be kept in mind "that the Act was not intended to compensate third parties for damage resulting from hazardous substance discharge." Id. at 648 (citing Exxon Corp. v. Hunt, 475 U.S. 355, 375, 106 S. Ct. 1103, 1115, 89 L. Ed. 2d 364 (1986)).

 Section 107(a)(4)(B) of CERCLA provides that a responsible party shall be liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan. . . ." See 42 U.S.C. § 9607(a)(4)(B). The Act does not explain the term "cost of response." See Artesian Water Co. v. Government of New Castle County, 659 F. Supp. at 1286 n. 28. The Act does define "response" as "remove, removal, remedy, and remedial action," see 42 U.S.C. § 9601(25), and "these terms explicitly include enforcement activities related to the cleanup effort." Artesian Water Co. v. Government of New Castle, 851 F.2d at 648.

 Section 101(23) states that the term "remove" or "removal" means

 See 42 U.S.C. § 9601(23). In turn, the term "remedy" or "remedial action" is defined 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. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.

 See id. § 9601(24).

 To state a claim under section 107 of CERCLA, a plaintiff must allege that (1) the waste disposal site is a "facility" within the meaning of 42 U.S.C. § 9601(9); (2) a "release" or "threatened release" from the facility has occurred, id. § 9607(a)(4); and (3) such "release" or "threatened release" has caused the plaintiff to incur response costs that are "consistent with the national contingency plan. . . ." Id. § 9607(a)(4); see also Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989). In addition, the defendant must fall within one of four classes of persons subject to CERCLA's liability provisions. See 42 U.S.C. § 9607(a)(1)-(4); see also Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d at 1152-1153. Count I in plaintiffs' amended complaint contains each of the necessary allegations. See document 27 of record, at paras. 67-72. Nevertheless, in their motion to dismiss Count I, defendants argue that paragraph 71 contains certain alleged "response costs" that are not recoverable under CERCLA. See document 39 of record, at pp. 6-23; document 48 of record, at pp. 28-30. Each contested category of response costs will be examined in seriatim.

 (1) Medical Monitoring

 
After reviewing the language of CERCLA, the legislative history and the case law, we believe that costs of medical screening and/or future medical monitoring are clearly not "necessary costs of response" under § 107 of CERCLA, as amended, 42 U.S.C. § 9607(a)(4)(B). Reading the language of CERCLA, one notes that the phrase "necessary costs of response" is not defined anywhere in CERCLA, and the word "response" is defined only as "remove, removal, remedy and remedial action." 42 U.S.C. § 9601(25). The statutory definitions of each of these words do not contain any references whatsoever to medical expenses of any kind nor do they give any inferences that such expenses are recoverable response costs under CERCLA. Rather, the definitions of these words clearly contemplate only the cleanup of toxic substances from the environment. While CERCLA does contain medical care provisions, these provisions are separate from the liability provisions of Section 107 of CERCLA. See [ Chaplin v. Exxon Corp., 25 Env't Rep.Cas. (BNA) 2009 (S.D.Tex. June 10, 1986) 1989 U.S. Dist. LEXIS 9627]. Specifically, as part of the 1986 SARA amendments, Congress created the Agency for Toxic Substances and Disease Registry in Section 104(i) of CERCLA to provide medical care and testing to exposed individuals including "tissue sampling chromosomal testing, epidemiological studies, or any other assistance appropriate under the circumstances." 42 U.S.C. § 9604(i)(4). As noted by the Chaplin court, "such medical testing costs clearly differ from either the response costs or clean up costs allowed in Section 9607." Chaplin at 2012. . . . Certainly, when Congress wanted to provide for medical care and testing, it knew how to do so in explicit language.
 
Our conclusion that costs of medical screening and/or future medical monitoring are not "necessary costs of response" under § 107 of CERCLA finds support in the legislative history of CERCLA. Although as is evident from the original Senate Superfund Bill, Congress contemplated including medical monitoring under CERCLA, Senator Randolph, commenting on the final compromise bill which became CERCLA, specifically stated "we have deleted the federal cause of action for medical expenses or property or income loss." 126 Cong. Rel. S14964 daily ed. Nov. 24, 1980). Indeed, the Supreme Court, after reviewing this legislative history, observed that CERCLA was not intended to compensate private parties for damages resulting from hazardous substance discharge. Exxon Corp., supra. The United States Court of Appeals for the Third Circuit, after reviewing this same legislative history, has indicated that is does not believe that reimbursement for property or income loss is possible under CERCLA. Artesian Water Co. v. New Castle County, 851 F.2d 643, 648-49 (3d Cir. 1988).

 See Coburn v. Sun Chemical Corp., supra. Rather than add unnecessarily to the length of this Memorandum, the court will simply adopt the rationale of the Coburn court as its own. Therefore, defendants' motion to dismiss paragraph 71(a) of plaintiffs' amended complaint will be granted.

 (2) Loss of Wells

 In paragraph 71(c) of the amended complaint, plaintiffs cite "loss of use of their wells" as an appropriate response cost. See document 27 of record, at para. 71(e). Defendants argue that such a claim is either "one for economic loss or natural resource damages, harms clearly beyond the scope of a CERCLA private-party response." See document 39 of record, at pp. 17-19. As the court agrees that the claim sounds of one for natural resource damages, defendants' motion to dismiss will be granted.

 Section 107 of CERCLA creates liability for "damages for injury to, destruction of, or loss of natural resources. See 42 U.S.C. § 9607(a)(4)(C). "Natural resources" are defined to include "water, ground water, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States . . . any State or local government, or any foreign government." Id. § 9601(16). Under CERCLA, however, actions for injury, destruction, or loss of a natural resource may be brought only by the federal government or a state. Id. § 9607(f).

 It is obvious that the supply of drinking water in Pennsylvania is managed and controlled by the state. See, e.g., 35 P.S. § 691.1 et seq. (Clean Streams Law); 35 P.S. § 721.1 et seq. (Pennsylvania Safe Drinking Water Act). The objective of the Clean Streams Law is "not only to prevent further pollution of the waters of the Commonwealth, but also to reclaim and restore to a clean, unpolluted condition every stream in Pennsylvania that is presently polluted..

 .." 35 P.S. § 691.4. The term "waters of the Commonwealth" shall be construed to include "any and all rivers, streams, creeks, rivulets, impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and all other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth." Id. § 691.1. The Clean Streams Law also confers upon the Department of Environmental Resources the power and authority to adopt and enforce "reasonable orders and regulations for the protection of any source of water for present or future supply to the public. . . ." Id. § 691.501 (emphasis added).

 Plaintiffs' claim for loss of use of their wells -- separate and apart from any claim for costs for alternate potable water supplies, see infra -- must be characterized as one for natural resource damages. While a governmental claim for natural resource damages and a private claim for provision of alternative water supplies are not "mutually exclusive remedies," see Artesian Water Co. v. Government of New Castle County, 659 F. Supp. at 1288, plaintiffs have made no attempt to separate the two remedies or explain why they (as opposed to the State) are entitled to recover on the former claim. Indeed, in response to defendants' motion to dismiss, plaintiffs treat their claims for loss of the use of the wells and for costs associated with obtaining alternative water supplies as a single claim. See document 46 of record, at pp. 12-15. Thus, plaintiffs' separate claim for "loss of use of their wells" will be dismissed.

 (3) Alternate, Potable Water Supplies

 Plaintiffs seek reimbursement for "costs of alternate, potable water supplies, including, but not limited to ongoing costs associated with municipal water" in paragraph 71(b). Defendants do not and, indeed, cannot argue that costs associated with provision of "alternative water supplies" are not appropriate response costs under CERCLA. See 42 U.S.C. § 9601(23) ("The terms'remove' or'removal' . . . include [] . . . provision of alternative water supplies"), § 9601(24) ("The terms 'remedy' or 'remedial action' means those actions consistent with permanent remedy taken instead of or in addition to removal actions. . . . The term includes . . . provision of alternative water supplies"). Instead, defendants argue that "the full costs of providing plaintiffs with another source of water supply were paid for by EPA" and that any costs of "ongoing" municipal water supply are not appropriate response costs for provision of alternative water supplies. See document 39 of record, at pp. 19-22. As the court believes that such claims are more properly addressed by way of a fully supported motion for summary judgment, defendants' present motion to dismiss will be denied.

 (4) Relocation Costs


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