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REDLAND SOCCER CLUB, INC. v. DEPARTMENT OF THE ARM

September 15, 1992

REDLAND SOCCER CLUB, INC., DEAN G. NEWHOUSE, RICHARD V. SPONG, SR., ROBERT E. KANE, and JACK H. HERSHBERGER, et al., Plaintiffs
v.
DEPARTMENT OF THE ARMY OF THE UNITED STATES OF AMERICA, and THE UNITED STATES OF AMERICA, Defendants; ROBERT C. O'NEAL, Individually and as Representative of the Estate of Florence M. O'Neal, Decedent, et al., Plaintiffs, vs. DEPARTMENT OF THE ARMY OF THE UNITED STATES OF AMERICA, and THE UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: WILLIAM W. CALDWELL

MEMORANDUM

 We are considering defendants' motion for judgment on the pleadings or, in the alternative, partial summary judgment. Plaintiffs allege certain violations of both federal and state environmental laws *fn1" and seek both damages and injunctive relief. We have previously dismissed claims for a medical monitoring fund pursuant to CERCLA and for injunctive relief pursuant to the Federal Tort Claims Act. We will consider in turn each of the issues raised in defendants' current motion.

 I. Timing of Review and 42 U.S.C. § 9613 (h)

 Defendants request that we dismiss plaintiffs' citizen suits *fn2" because we have no subject matter jurisdiction to hear such claims, that jurisdiction being expressly limited by 42 U.S.C. § 9613 (h).

 A. Claims Under CERCLA

 We agree with defendants' assertion that the proper point at which to begin statutory analysis is the plain language of the statute. In Re Continental Airlines, Inc., 932 F.2d 282, 287 (3d Cir. 1991). We disagree, however, with defendants' characterization of 42 U.S.C. § 9613(h) as "plain and unambiguous." *fn3" The language of the statute is susceptible to at least two interpretations. The interpretation that defendants offer is that the use of the past tense in § 9613(h)(4) is intended to divest federal courts of jurisdiction over any suit involving a site currently being investigated or cleaned up under CERCLA provisions. Werlein v. United States, 746 F. Supp. 887, 892 (D. Minn. 1990). Another interpretation is that "challenges" as used in the statute refers to suits that question the propriety of Environmental Protection Agency ("EPA") actions taken under CERCLA. Plaintiffs contend that their suits are not challenges to so much as supplementations of CERCLA actions. Viewed in that light, plaintiffs' actions could be seen as parallel cleanup attempts and not challenges at all.

 We believe that defendants are correct that the general purpose of § 9613 is to narrow federal jurisdiction. Werlein, supra. The broad language of the statute indicates such an intent, as does reference to the legislative history:

 It is my understanding that under [§ 9613(h)], no person may bring any lawsuit in any Federal court regarding a federally approved removal or remedial action except when the removal action has been completed or when the remedial action has been taken or secured. "Taken or secured" means that all of the activities set forth in the record of decision which includes the challenged action have been completed. Moreover, there is to be no review of a removal action when there is to be a remedial action at the site. Thus, for example, review of the adequacy of a remedial investigation and feasibility study, which is a removal action, would not occur until the remedial action itself had been taken.

 132 Cong. Rec. 28,440-41 (1986) (statement of Sen. Thurmond).

 Both the plain language and the legislative history indicate a broad congressional intent that federal courts not hear such challenges until the remedial actions are complete.

 Plaintiffs rely on one of the exceptions to § 9613(h) for the proposition that their private cause of action under § 107 of CERCLA is exempted from those dictates. Section 9613(h)(1) allows "an action under section 107 to recover response costs or damages or for contributions." Section 107 allows a private right of action. McGregor v. Industrial Excess Landfill, Inc., 709 F. Supp. 1401, 1409 (N.D. Ohio 1987). However, courts have widely held that that right of action is for private persons to recover monies they have expended to clean up sites or to prevent further releases of hazardous chemicals. As we noted in an earlier memorandum in this case,"' medical surveillance, health effect studies, and health assessments' are not recoverable response costs under CERCLA." Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1246 (M.D. Pa. 1990) (Conaboy, J.). Plaintiffs in the instant case have not alleged that they have paid for any of the remedial actions contemplated by CERCLA. The private cause of action afforded by § 107 and referred to in § 9613(h)(1) simply does not include claims of the type plaintiffs here offer. See also, Daigle, et al v. Shell Oil and United States, 972 F.2d 1527, 1992 U.S. App. LEXIS 19273 (10th Cir. August 18, 1992). Therefore, as the exception does not apply, we must follow the mandate of § 9613(h) and dismiss without prejudice the citizen suit portions of plaintiffs' complaints brought pursuant to CERCLA.

 B. Claims Under HSCA

 We are convinced that the same analysis holds true for those parts of the actions brought under 35 Pa. Cons. Stat. § 6020.101, et seq. (the HSCA) for injunctive relief. The plain language of the statute divests federal courts of jurisdiction over actions ". . . under State law . . ." 42 U.S.C. § 9613(h). Several courts have assumed that claims brought under state environmental protection statutes must be dismissed along with CERCLA claims where § 9613(h) applies. Werlein, supra, at 894; North Shore Gas Co. v. EPA, 753 F. Supp. 1413 (N.D. ...


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