ELR Citation: ELR 20173
No(s). C-83-5893-RPA (N.D. Cal. Oct 22, 1984)

The court rules that §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contemplates recovery for private cleanup activities undertaken at a hazardous waste disposal site in the absence of any governmental action with respect to the particular site. Refuting defendant's argument that CERCLA §107 merely establishes liability for the purposes of §§111 and 112, which control use of the Superfund, the court rules that the statutory language and prior court decisions demonstrate that §107 establishes a private cause of action that is distinct from §§111 and 112. The court also rules that consistency with the National Contingency Plan (NCP) and government pre-authorization of costs are distinct requirements, only the first of which must be satisfied for recovery from a responsible party under the Act. The language of CERCLA §105 and of the NCP itself confirms that consistency with the NCP for purposes of a private cause of action under CERCLA §107 does not require either federal pre-authorization or inclusion of the site on the National Priorities List. The court does not conclude, however, that plaintiff's cleanup activities are consistent with the NCP, an issue that must await development of a factual record.

Next, the court holds that plaintiff, as present owner of the site, has standing to sue defendant, a prior owner, under CERCLA §107, despite plaintiff's potential liability for response costs. The court holds that plaintiff's claim for declaratory relief under the Act is ripe for adjudication, since plaintiff already has expended funds for investigation and cleanup. The court refuses to dismiss plaintiff's claim for declaratory relief as to future response costs, ruling that plaintiff's controversy with defendant over future costs is delineated precisely enough to allow a determination of future liability. Finally, the court rules that plaintiff's state-law nuisance claims are barred by the statute of limitations.

Counsel for Plaintiff
Steven N. Roberts
Nossaman, Guthner, Knox & Elliott
Third Floor, 100 The Embarcadero, San Francisco CA 94105
(415) 543-2700

Counsel for Defendant
Gary H. Anderson
Patrick L. Finley
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1000