ELR Citation: ELR 20246
No(s). C84-1129M (W.D. Wash. Feb 5, 1985)

The court holds that assessment costs for hazardous waste site cleanup are not sufficient to ripen a claim for response costs under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first considers the merits of generator and transporter defendants' motions to dismiss plaintiff's Racketeer Influenced and Corrupt Organizations Act (RICO) actions. The court rules that although Boeing is not named as a defendant in plaintiff's RICO claims, it nevertheless has standing to move to dismiss those claims, since it is in the pool of defendants from which plaintiff seeks discovery. The court denies most of defendants' motions to dismiss, rejecting arguments that plaintiff failed to sufficiently plead its claims. The court then rules that plaintiff's CERCLA claim is not ripe. Plaintiff has incurred investigative costs only. Expenses for monitoring, assessment, and evaluation such as plaintiff has incurred are certainly costs of response that are ultimately recoverable, but assessment costs by themselves are not sufficient for a CERCLA cost recovery action. Actual cleanup of a release must have begun. Finally, the court rules that plaintiff's use of fictitious defendants is proper. Plaintiff has specified the actions of the unnamed defendants and merely seeks to discover their names.

Counsel for Plaintiff
Steven W. Hale
Cable, Barrett, Langenbach & McInerney
1900 Fourth and Blanchard Bldg., 121 Fourth Ave., Seattle WA 98121
(206) 464-1900

Counsel for Defendants
Charles C. Gordon
Perkins Cole
One Bellevue Center, Suite 1800, 411 108th Ave. NE, Bellevue WA 98004
(206) 453-6980