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UNITED STATES v. ALLIED-SIGNAL CORP.

January 10, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
ALLIED-SIGNAL CORP., et al., Defendants



The opinion of the court was delivered by: SMITH

 FERN M. SMITH, UNITED STATES DISTRICT JUDGE

 This case concerns efforts on the part of plaintiff, the United States Navy, to recover the costs of cleaning up portions of the Concord Naval Station which once were owned by defendants, later were acquired by the Navy via eminent domain, and now are known to contain toxic pollutants. In 1983, plaintiff brought this action for recovery of clean-up costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., which authorizes recovery of past and future clean-up expenditures from, inter alia, former owners of contaminated sites.

 The parties have raised an issue of first impression. The statute in question has yet to be applied to facts like those present here. Simply stated, the controversy is this: Plaintiff contends that its power to formulate a remedial action plan and bring this action for recovery of clean-up costs is derived from the power granted to the President by § 104 of CERCLA. SARA § 113(j) provides that the President's (or his delegatee's) choice of a remedial action plan formulated pursuant to CERCLA § 104 is to be given deference by reviewing courts. *fn2"

 Defendants, however, contend that plaintiff's action for recovery of clean-up costs is brought pursuant to SARA § 211, which governs toxic contamination of facilities owned or managed by the Department of Defense ("DOD") and empowers the Secretary of Defense, or his delegatee, to devise an appropriate clean-up plan. SARA § 120 provides that the federal agencies, such as the DOD, are to be treated like private landowners under the statute and says nothing about according deference to the Secretary's adopted remedial action plan. Thus, the applicable scope of review hinges upon which portion of CERCLA/SARA is found to authorize this cost recovery action.

 PLAINTIFF'S ARGUMENT

 Relying on CERCLA § 104 and SARA § 113(j), plaintiff argues that the Court may review the adequacy of the Navy's planned response action only by examining the administrative record under the arbitrary and capricious standard. Plaintiff alleges that, insofar as it affects the Concord Naval Station, the President delegated his powers under § 104 to the Secretary of Defense, pursuant to executive order. The Secretary of Defense, in turn, allegedly delegated his powers to the Secretary of the Navy.

 The Navy undertook a variety of studies to determine the nature of the hazardous contamination at the Naval Station and then developed and analyzed various clean-up alternatives. Navy personnel prepared a variety of reports which were published for public review and comment, and consulted with the Fish and Wildlife Service and the Environmental Protection Agency (EPA), allegedly giving defendants the opportunity to participate in those consultations. Finally, the Navy prepared a Proposed Remedial Action Plan and solicited comments in response to the plan from "interested parties."

 After considering the comments and consulting with other agencies as well as with defendants, the Navy adopted the Final Remedial Action Plan on April 6, 1989. The administrative record was completed on that date and allegedly contains all of the information that went into developing the Final Plan, as well as the Plan itself. Plaintiff urges this Court to review the Navy's choice of clean-up alternatives for the Naval Weapons Station as stated in § 113(j) of CERCLA and, based upon that scope of review, to bar discovery outside the administrative record.

 This is the first reported case in which the protections of § 113(j) have been invoked by a federal agency which is both the owner of the contaminated property in question and the entity responsible for devising a remedial action plan. The situation is further complicated by defendants' allegation that plaintiff is responsible for at least some of the contamination and is itself potentially liable under CERCLA.

 Reported cases under CERCLA generally fall into one of two categories. There are cases in which the E.P.A. is supervising or undertaking the clean-up of property it does not own (although the property may be owned by some other government agency). See e.g., United States v. Hardage, 663 F. Supp. 1280 (W.D. Okla. 1987), United States v. Ottati & Goss, 630 F. Supp. 1361 (D.N.H. 1985); United States v. Seymour Recycling Corp., 679 F. Supp. 859 (S.D. Ind. 1987); United States v. Rohm & Haas Co., 669 F. Supp. 672 (D.N.J. 1987). In these cases, courts have deferred to the remedial action plan selected by the E.P.A.

 In the other category of cases, a landowner is suing prior landowners or neighbors which the landowner contends contaminated his or her property. See e.g., Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th Cir. 1986); Artesian Water Co. v. New Castle County, 659 F. Supp. 1269 (D. Del. 1987), aff'd., 851 F.2d 643 (3d Cir. 1988). Defendants state that "no court has ever limited its review in ...


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