ELR Citation: ELR 20791
No(s). s. C-84-6273SC, -6324SC (N.D. Cal. May 17, 1985)

The court rules that a defendant in a suit presenting state-law claims for failure to notify the purchaser of land of hazardous substances disposed of thereon may not maintain an action to determine defendant's liabilities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) where defendant does not allege that it has incurred necessary costs of response consistent with the national contingency plan.

Defendant's failure to allege that it incurred necessary costs of response or that it incurred costs consistent with the national contingency plan are fatal to its CERCLA action. The court also holds that it lacks federal subject matter jurisdiction over the original complaint and remands the case to state court. Once the CERCLA claim is dismissed, the court rules nothing remains but the state claims raised by the plaintiff. While §113(b) gives the district courts original jurisdiction over controversies arising under CERCLA, such jurisdiction is conferred only over those cases where the complaint presents a CERCLA question on its face. In this case, the complaint does not specifically allege the prerequisites for a §107(a)(4)(B) claim.

Counsel for Plaintiffs
Stephen B. Peck
Hanson, Bridgett, Marcus, Vlahos & Stromberg
23d Floor, 333 Market St., San Francisco CA 94105
(415) 777-3200

Nicholas Aracic
Moore, Clifford, Wolfe, Larson & Trutner
201 19th St., Oakland Ca 94612
(415) 444-6800

Counsel for Defendants
Arthur R. Albrecht
Thacher, Albrecht & Ratcliff
Suite 700, 300 Montgomery St., San Francisco CA 94104
(415) 981-1434

Kenneth E. Keller
Bronson, Bronson & McKinnon
Bank of America Center
555 California St., San Francisco CA 94104
(415) 391-4500