ELR Citation: ELR 20415
No(s). s. 88-1205, 89-0576 (M.D. Pa. Nov 13, 1990)

The court dismisses claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by area residents against the owners and operators of a battery processing plant, Plaintiffs allege that they have been exposed to high levels of lead that migrated from the facility and that they have suffered personal and property damages from the lead contamination. The court first holds that medical surveillance, health effect studies, and health assessments are not recoverable response costs under CERCLA. None of the specific items mentioned in the definition of "remove or removal" in CERCLA §101(23) refer to medical testing or monitoring. The structure of the definition implies that it should be confined to actions that involve the cleanup of toxic substances. This interpretation is consistent with CERCLA's purposes of abating hazardous substance releases and responding to hazardous waste in existing disposal sites. CERCLA was intended primarily as a response program for the past hazardous waste activities, not as a universal solution to all ills that originate from a hazardous waste site. Plaintiffs are not precluded from seeking recovery for medical monitoring under traditional state tort proceedings for personal injury. Further, Pennsylvania courts would probably recognize a claim for medical monitoring. The court notes that there are two reasons that the costs for air, soil, and water testing are recoverable under CERCLA while medical monitoring costs are not. First, CERCLA does provide for medical testing and monitoring through petitions to the Agency for Toxic Substances and Disease Registry. Second, testing of air, soil, and water determines whether a removal or remedial action is necessary, while recovery for medical monitoring is inconsistent with the Act's primary purpose of removing hazardous waste from the environment. The court next holds that organizational expenses such as transportation costs, attendance at public meetings, and participation in environmental groups are not recoverable response costs under CERCLA. Recovery of these expenses is also inconsistent with the Act's purpose of removing hazardous waste from the environment. Further, CERCLA §107(e) provides for funding to facilitate public participation in cleanup efforts. The court holds that damages for loss of beneficial use of gardens and property are also not recoverable response costs under CERCLA. Such damages are economic losses not covered by CERCLA.

The court notes that expenses for air, water, and soil testing and monitoring; cleanup costs; expert fees; and investigative expenses are recoverable under CERCLA. However, the court holds that plaintiffs may not recover these costs because plaintiffs have not demonstrated that they are consistent with the national contingency plan (NCP). The court rules that plaintiffs in private CERCLA actions must specifically allege in their complaints either the costs they incurred or the actions they took in response to the allegedly hazardous conditions. The court holds that plaintiffs in this case have barely met this standard. The court rules that consistency with the NCP is part of plaintiff's prima facie case. The court holds that plaintiffs have not demonstrated consistency with the NCP. The court notes that plaintiffs in private CERCLA actions have the burden of showing that their costs are consistent with the NCP. Further, plaintiffs have not shown that they have incurred "necessary" costs consistent with the NCP.

Counsel for Plaintiffs
Thomas J. Ratchford, Jr., Diane F. Beermer
Minora, Minora, Colbassani & Ratchford
700 Vine St., Scranton PA 18510
(717) 424-1401

Gerald J. Williams
Williams & Cuker
1650 Arch St., Ste. 2350, Philadelphia PA 19103
(215) 557-0099

Counsel for Defendant/Third-Party Plaintiff
G. Wayne Renneisen, Mark A. Lockett, John D. Lemonick
Harvey, Pennington, Herting & Renneisen, Ltd.
1600 Market St., 12th Fl., Philadelphia PA 19103
(215) 563-4470

Counsel for Third-Party Defendants
Joel R. Burcat, Linda J. Shorey
Kirkpatrick & Lockhart
Payne Shoemaker Bldg., 240 N. Third St., Harrisburg PA 17107
(717) 231-4500

Irwin Schneider
O'Malley, Harris & Schneider
345 Wyoming Ave., Scranton PA 18503
(717) 348-3711

Gerald Gornish, Barry M. Klayman
Wolf, Block, Schoor & Solis-Cohen
Packard Bldg., 12th Fl., Philadelphia PA 19102-2678
(215) 977-2000