ELR Citation: ELR 20751
No(s). S-90-0361-WBS/JFM (E.D. Cal. Dec 10, 1991)

The court holds that the decision of the U.S. Department of Defense (DOD) to conduct public auction sales during the 1970s of chemicals considered surplus government property is a discretionary function exempt from the Federal Tort Claims Act's (FTCA's) limited waiver of sovereign immunity, but a property owner who discovered that a subtenant had purchased chemicals from the United States and stored them at the property may challenge the government's failure to comply with its own regulations mandating specific standards for processing and selling hazardous materials. The court holds that the property owner's complaint that DOD violated its own regulations by commingling hazardous chemicals with other items of commercial value is barred because the language of DOD regulations stating that the property should not be commingled is discretionary but does not mandate adherence. However, the property owner's complaint that DOD sold the hazardous chemicals in leaking or damaged containers is not barred by the FTCA because it is not governed by any discretionary policy consideration. The court holds that under California law, the property owner's conspiracy allegation is also barred by the FTCA, but not by the statute of limitations. The court holds that the property owner may not recover attorneys fees as response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The legislative history supports the inference that Congress did not intend private parties to recover enforcement costs. The phrase "enforcement activities" in the statute falls short of an explicit award of attorney fees as in other provisions of CERCLA. Although the award of attorney fees for private enforcement activities may be consistent with the purposes of CERCLA, the court cannot add statutory language. The court holds that Congress expressly waived sovereign immunity with respect to prejudgment interest under CERCLA. The court holds that factual issues preclude summary judgment on whether the sale of the chemicals was an arrangement for disposal of hazardous substances.

Counsel for Plaintiff
John F. Barg, Brian S. Haughton
Landels, Ripley & Diamond
350 Steuart St., Hills Plaza, San Francisco CA 94105
(415) 788-5000

Counsel for Defendant
Stuart M. Gerson
Civil Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Barry M. Hartman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Robert N. Black
Black & Kooper
417 E St., Davis CA 95616
(916) 758-0757