ELR Citation: ELR 20151
No(s). 83-6805-CIV-JAG (S.D. Fla. Jun 19, 1984)

The court rules that plaintiff's action for a declaration of defendants' liabilities to it for the costs of cleaning up a spill of toxic chemicals under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not ripe for review because plaintiff's cleanup proposal has not been approved by appropriate government agencies. In a footnote, the court rules that defendants' abstention claim is defeated by the lack of an active state court action and defendants' failure to specifically show that this proceeding's outcome is likely to interfere with state law or policy.

The court also rejects defendants' argument that CERCLA does not provide for private actions against other private parties, ruling that §107(a)(4)(B) authorizes such actons if certain preconditions are met. The first precondition, it rules, is state or federal approval of plaintiff's cleanup plan. Such approval is necessary to ensure that the remedy will be legally and environmentally adequate. The requirement of §107(a)(4)(B) that private cost recovery actions are available only for costs "other" than government costs supports the conclusion that Congress intended the government to take the lead in all CERCLA cleanup acitons. The language of the national contingency plan and CERCLA's clear emphasis on getting cleanup actions underway before actions to allocate responsibility for the costs further support this conclusion.

The court also rules that presentment of a demand letter for a sum certain under §122(a) is a prerequisite to a cost recovery suit, a requirement that could not be satisfied without a government-approved plan to establish the costs. The court reviews related decisions and finds them consistent with its ruling. The court also rules that plaintiff lacks a reviewable cause of action because it has not incurred any response costs. While its investigatory costs might eventually be recoverable under CERCLA, other decisions make clear that no action may be brought before some cleanup costs have been incurred. Finally, the court rules that plaintiff has failed to satisfy the requirements of the Declaratory Judgment Act of a substantial, immediate, and real controversy. The state has threatened to take an enforcement action that could subject plaintiff to cleanup costs it could not bear, but no action has resulted.

Counsel for Plaintiff
Richard Pettigrew
Morgan, Lewis & Bockius
100 Chopin Plaza, 3200 Miami Ctr., Miami FL 33131
(305) 579-0300

Counsel for Defendants
Barry Malter
Holland & Knight
888 17th St., NW, Suite 400, Washington DC 20006
(202) 955-5550

Hendrick G. Milne
Squire, Sanders & Dempsey
100 Chopin Plaza, Miami Ctr., Miami FL 33131
(305) 557-8700

James E. McDonald
McDermott, Will & Emery
700 Brickell Ave., Miami FL 33131
(305) 358-3500