Georgia

v. Tennessee Copper Co., 206 U.S. 230 (1907) The caution with which demands of this sort on the part of a state for relief from injuries
U.S. Supreme Court analogous to torts must be examined is dwelt upon in Missouri v. Illinois, 200 U. S.
Argued February 25, 26, 1907 | Decided May 13, 1907 496, 200 U. S. 520-521. But it is plain that some such demands must be recognized, if the
grounds alleged are proved. When the states by their union made the forcible abatement

of outside nuisances impossible to each, they did not thereby agree to submit to
BILL IN EQUITY
whatever might be done. They did not renounce the possibility of making reasonable
Syllabus
demands on the ground of their still remaining quasi-sovereign interests, and the
When the states by their union made the forcible abatement of outside nuisances
alternative to force is a suit in this Court. Missouri v. Illinois, 180 U. S. 208, 180 U. S. 241.
impossible to each, they did not thereby agree to submit to whatever might be done.
Some peculiarities necessarily mark a suit of this kind. If the state has a case at all, it is
They retained the right to make reasonable demands on the grounds of their still
somewhat more certainly entitled to specific relief than a private party might be. It is not
remaining quasi-sovereign interests, and the alternative to force a suit in this Court.
lightly to be required to give up quasi-sovereign rights for pay; and, apart from the
This Court has jurisdiction to, and at the suit of a state will, enjoin a corporation, citizen
difficulty of valuing such rights in money, if that be its choice, it may insist that an
of another state, from discharging over its territory noxious fumes from works in
infraction of them shall be stopped. The states, by entering the Union, did not sink to the
another state where it appears that those fumes cause and threaten damage on a
position of private owners, subject to one system of private law. This Court has not quite
considerable scale to the forests and vegetable life, if not to health, within the plaintiff's
the same freedom to balance the harm that will be done by an injunction against that of
state.
which the plaintiff complains, that it would have in deciding between two subjects of a
A suit brought by a state to enjoin a corporation having its work in another state from
single political power. Without excluding the considerations that equity always takes
discharging noxious gases over its territory is not the same as one between private
into account, we cannot give the weight that was given them in argument to a
parties, and although the elements which would form the basis of relief between private
comparison between the damage threatened to the plaintiff and the calamity of a
parties are wanting, the state can maintain the suit for injury in a capacity as quasi-
possible stop to the defendants' business, the question of health, the character of the
sovereign, in which capacity it has an interest independent of and behind its citizens in
forests as a first or second growth, the commercial possibility or impossibility of
all the earth and air within its domain, and whether insisting upon bringing such a suit
reducing the fumes to sulphuric acid, the special adaptation of the business to the place.
results in more harm than good to its citizen, many of whom may profit through the
It is a fair and reasonable demand on the part of a sovereign that the air over its territory
maintenance of the works causing the nuisance, is for the state itself to determine.
should not be polluted on a great scale by sulphurous acid gas, that the forests on its

mountains, be they better or worse, and whatever domestic destruction they have
The facts are stated in the opinion.
suffered, should not be further destroyed or threatened by the act of persons beyond its
MR. JUSTICE HOLMES delivered the opinion of the Court.
control, that the crops and orchards on its hills should not be endangered from the same
This is a bill in equity filed in this Court by the State of Georgia, in pursuance of a
source. If any such demand is to be enforced this must be notwithstanding the hesitation
resolution of the legislature and by direction of the governor of the state, to enjoin the
that we might feel if the suit were between private parties, and the doubt whether, for
defendant copper companies from discharging noxious gas from their works in
the injuries which they might be suffering to their property, they should not be left to an
Tennessee over the plaintiff's territory. It alleges that, in consequence of such discharge,
action at law.
a wholesale destruction of forests, orchards, and crops is going on, and other injuries are
The proof requires but a few words. It is not denied that the defendants generate in their
done and threatened in five counties of the state. It alleges also a vain application to the
works near the Georgia line large quantities of sulphur dioxide which becomes
State of Tennessee for relief. A preliminary injunction was denied; but, as there was
sulphurous acid by its mixture with the air. It hardly is denied, and cannot be denied with
ground to fear that great and irreparable damage might be done, an early day was fixed
success, that this gas often is carried by the wind great distances and over great tracts of
for the final hearing, and the parties were given leave, if so minded, to try the case on
Georgia land. On the evidence, the pollution of the air and the magnitude of that pollution
affidavits. This has been done without objection, and, although the method would be
are not open to dispute. Without any attempt to go into details immaterial to the suit, it is
unsatisfactory if our decision turned on any nice question of fact, in the view that we take
proper to add that we are satisfied, by a preponderance of evidence, that the sulphurous
we think it unlikely that either party has suffered harm.
fumes cause and threaten damage on so considerable a scale to the forests and vegetable
The case has been argued largely as if it were one between two private parties; but it is
life, if not to health, within the plaintiff state, as to make out a case within the
not. The very elements that would be relied upon in a suit between fellow-citizens as a
requirements of Missouri v. Illinois, 200 U. S. 496. Whether Georgia, by insisting upon this
ground for equitable relief are wanting here. The state owns very little of the territory
claim, is doing more harm than good to her own citizens is for her to determine. The
alleged to be affected, and the damage to it capable of estimate in money, possibly at
possible disaster to those outside the state must be accepted as a consequence of her
least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign.
standing upon her extreme rights.
In that capacity, the state has an interest independent of and behind the titles of its
It is argued that the state has been guilty of laches. We deem it unnecessary to consider
citizens, in all the earth and air within its domain. It has the last word as to whether its
how far such a defense would be available in a suit of this sort, since, in our opinion, due
mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It
diligence has been shown. The conditions have been different until recent years. After
might have to pay individuals before it could utter that word, but with it remains the
the evil had grown greater in 1904, the state brought a bill in this Court. The defendants,
final power. The alleged damage to the state as a private owner is merely a makeweight,
however, already were abandoning the old method of roasting ore in open heaps and it
and we may lay on one side the dispute as to whether the destruction of forests has led to
was hoped that the change would stop the trouble. They were ready to agree not to
the gullying of its roads.
return to that method, and, upon such an agreement's being made, the bill was dismissed
without prejudice. But the plaintiff now finds, or thinks that it finds, that the tall Joseph A. PAKOOTAS, an individual and enrolled member of the
chimneys in present use cause the poisonous gases to be carried to greater distances Confederated Tribes of the Colville Reservation;
than ever before, and that the evil has not been helped. Donald R. Michel, an individual and enrolled member of the Confederated
If the State of Georgia adheres to its determination, there is no alternative to issuing an
Tribes of the Colville Reservation;
injunction, after allowing a reasonable time to the defendants to complete the structures
State of Washington, Plaintiffs-Appellees,
that they now are building, and the efforts that they are making to stop the fumes. The
plaintiff may submit a form of decree on the coming in of this Court in October next. v.
Injunction to issue. TECK COMINCO METALS, LTD., a Canadian corporation, Defendant-
Appellant.
MR. JUSTICE HARLAN, concurring: United States Court of Appeals,Ninth Circuit.
The State of Georgia is, in my opinion, entitled to the general relief sought by its bill, and No. 05-35153. Decided: July 03, 2006
therefore I concur in the result. With some things, however, contained in the opinion, or
to be implied from its language, I do not concur. When the Constitution gave this Court Syllabus:
original jurisdiction in cases "in which a state shall be a party," it was not intended, I Joseph A. Pakootas and Donald R. Michel (collectively Pakootas) filed suit to enforce a
think, to authorize the court to apply in its behalf any principle or rule of equity that Unilateral Administrative Order (Order) issued by the United States Environmental
would not be applied, under the same facts, in suits wholly between private parties. If Protection Agency (EPA) against Teck Cominco Metals, Ltd. (Teck), a Canadian
this were a suit between private parties, and if, under the evidence, a court of equity corporation. The Order requires Teck to conduct a remedial investigation/feasibility
would not give the plaintiff an injunction, then it ought not to grant relief, under like study (RI/FS) in a portion of the Columbia River entirely within the United States, where
circumstances, to the plaintiff, because it happens to be a state, possessing some powers hazardous substances disposed of by Teck have come to be located. We decide today
of sovereignty. Georgia is entitled to the relief sought not because it is a state, but whether a citizen suit based on Teck's alleged non-compliance with the Order is a
because it is a party which has established its right to such relief by proof. The opinion, if domestic or an extraterritorial application of the Comprehensive Environmental
I do not mistake its scope, proceeds largely upon the ground that this Court, sitting in this Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675.
case as a court of equity, owes some special duty to Georgia as a state, although it is a Further, we address Teck's argument that it is not liable for having arranged for
party, while, under the same facts, it would not owe any such duty to the plaintiff if an disposal of hazardous substances because it disposed of the hazardous substances itself,
individual. rather than arranging for disposal by any other party or entity. We hold that because
CERCLA liability is triggered by an actual or threatened release of hazardous substances,
and because a release of hazardous substances took place within the United States, this
suit involves a domestic application of CERCLA. Further, we reject Teck's contention that
it is not liable under 9607(a)(3) because it disposed of the hazardous substances itself.

I. We consider an interlocutory appeal of the denial of Teck's motion to dismiss. In
August of 1999, the Colville Tribes petitioned the EPA under 9605 to conduct an
assessment of hazardous substance contamination in and along the Columbia River in
northeastern Washington state. The EPA began the site assessment in October 1999, and
found contamination that included heavy metals such as arsenic, cadmium, copper, lead,
mercury and zinc. The EPA also observed the presence of slag, a by-product of the

smelting furnaces, containing glassy ferrous granules and other metals, at beaches and
other depositional areas at the Assessment Area. The EPA completed its site assessment
in March of 2003, and concluded that the Upper Columbia River Site (the Site) was
eligible for listing on the National Priorities List (NPL).
Teck owns and operates a lead-zinc smelter (Trail Smelter) in Trail, British Columbia.
Between 1906 and 1995, Teck generated and disposed of hazardous materials, in both
liquid and solid form, into the Columbia River. These wastes, known as slag, include the
heavy metals arsenic, cadmium, copper, mercury, lead, and zinc, as well as other
unspecified hazardous materials.
Before mid-1995, the Trail Smelter discharged up to 145,000 tons of slag annually into

the Columbia River. Although the discharge took place within Canada, the EPA concluded
that Teck has arranged for the disposal of its hazardous substances from the Trail
Smelter into the Upper Columbia River by directly discharging up to 145,000 tonnes of
slag annually prior to mid-1995. Effluent, such as slag, was discharged into the Columbia
River through several outfalls at the Trail Smelter. The slag was carried downstream in that legislation of Congress, unless a contrary intent appears, is meant to apply only
the passing river current and settled in slower flowing quiescent areas. A significant within the territorial jurisdiction of the United States.
amount of slag has accumulated and adversely affects the surface water, ground water, However, the district court concluded that the presumption against extraterritoriality
sediments, and biological resources of the Upper Columbia River and Lake Roosevelt. was overcome here, because there is no doubt that CERCLA affirmatively expresses a
Technical evidence shows that the Trail Smelter is the predominant source of clear intent by Congress to remedy domestic conditions' within the territorial
contamination at the Site. The physical and chemical decay of slag is an ongoing process jurisdiction of the U.S. That clear intent, combined with the well-established principle
that releases arsenic, cadmium, copper, zinc, and lead into the environment, causing that the presumption [against extraterritoriality] is not applied where failure to extend
harm to human health and the environment. the scope of the statute to a foreign setting will result in adverse effects within the United
After the EPA determined that the Site was eligible for listing on the NPL, it evaluated States, leads this court to conclude that extraterritorial application of CERCLA is
proposing the Site for placement on the NPL for the purpose of obtaining federal funding appropriate in this case.
for evaluation and future cleanup. At that time Teck Cominco American, Inc. Further, the district court held that Teck was a person under the meaning of
(TCAI) approached the EPA and expressed a willingness to perform an independent, 9601(21), and held that Teck's liability as a generator of hazardous waste and/or as an
limited human health study if the EPA would delay proposing the Site for NPL listing. arranger of the disposal of hazardous waste could not be ruled out under
The EPA and TCAI entered into negotiations, which reached a stalemate when the parties 9607(a)(3).
could not agree on the scope and extent of the investigation that TCAI would perform. The district court sua sponte certified its order for immediate appeal to us pursuant to
The EPA concluded that TCAI's proposed study would not provide the information 28 U.S.C. 1292(b). Thereafter, Teck petitioned for permission to appeal, which we
necessary for the EPA to select an appropriate remedy for the contamination, and as a granted. While Teck's petition for permission to appeal was pending before us, the
result the EPA issued the Order on December 11, 2003. The Order directed Teck to district court granted Teck's motion to stay further proceedings in the district court
conduct a RI/FSunder CERCLA for the Site. To date Teck has not complied with the pending the outcome of this interlocutory appeal.
Order, and the EPA has not sought to enforce the Order. On this appeal, Teck does not challenge the district court's determination that it had
Pakootas filed this action in federal district court under the citizen suit provision of personal jurisdiction over Teck. And although Teck disputes the conclusion that the
CERCLA. 9659(a)(1). Pakootas sought a declaration that Teck has violated the Order, district court had subject matter jurisdiction to hear the case, it does not argue in its
injunctive relief enforcing the Order against Teck, as well as penalties for non- briefing that the district court was without subject matter jurisdiction. Rather, Teck
compliance and recovery of costs and fees. argues that the district court should have dismissed Pakootas's complaint under Federal
Teck moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure Rule of Civil Procedure 12(b)(6) for two reasons. First, Teck argues that to apply CERCLA
12(b)(1) and 12(b)(6) for failure to state a cause of action under CERCLA and lack of to Teck's activities in Canada would be an impermissible extraterritorial application of
subject matter jurisdiction, on the ground that the district court could not enforce the United States law. Second, Teck argues that it is not liable as a person who arranged for
Order because it was based on activities carried out by Teck in Canada. Teck also moved disposal of hazardous substances under 9607(a)(3).
to dismiss for lack of personal jurisdiction over Teck, a Canadian corporation with no
presence in the United States. After Teck filed its motion to dismiss, the State of II. We review de novo a district court's decision on a motion to dismiss for failure to state
Washington moved to intervene as of right as a plaintiff in the action. The district court a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We review questions of law
granted the motion to intervene, and considered Teck's pending motion to dismiss to de novo.
apply to both Pakootas's complaint and the State of Washington's complaint-in-
intervention. III. LITIGATION PURSUANT TO CERCLA STATUTORY FRAMEWORK: CERCLA sets forth a
The district court denied Teck's motion to dismiss. It held that because the case arises comprehensive scheme for the cleanup of hazardous waste sites, and imposes liability
under CERCLA there is a federal question which confers subject matter jurisdiction on for cleanup costs on the parties responsible for the release or potential release of
this court. Because there was a federal question, and because Pakootas's claims were hazardous substances into the environment. Two main purposes of CERCLA are
not insubstantial or frivolous, the district court held that dismissal under Federal Rule of prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the
Civil Procedure 12(b)(1) was inappropriate. The district court also held that [t]he facts responsible party.
alleged in plaintiffs' complaints establish this court's specific, limited personal To ensure the prompt cleanup of hazardous waste sites, CERCLA gives four options to the
jurisdiction over the defendant. EPA: (1) the EPA can investigate and remediate hazardous waste sites itself under
Much of district court's order was devoted to analyzing Teck's argument that the suit 9604, and later seek to recover response costs from the potentially responsible parties
involved an impermissible extraterritorial application of CERCLA, and thus whether (PRPs) under 9607;(2) the EPA can initiate settlement negotiations with PRPs under
dismissal for failure to state a claim under CERCLA was appropriate. The district court 9622; (3) the EPA can file suit in federal district court to compel the PRPs to abate the
first acknowledged that there is some question whether this case really involves an threat if there is an imminent and substantial threat to public health or welfare under
extraterritorial application of CERCLA. However, the district court assumed that the 9606(a); or (4) the EPA can issue orders directing the PRPs to clean up the site under
case involved an extraterritorial application of CERCLA, and considered whether 9606(a). In this case, the EPA chose the fourth approach, and issued the Order to Teck
extraterritorial application was permissible here. under 9606(a).
In addressing the question of extraterritorial application, the district court If a party receives an order and refuses to comply, enforcement options are available.
acknowledged that Congress has the authority to enforce its laws beyond the territorial See generally Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 387 (8th Cir.1987).
boundaries of the United States, but that it is a longstanding principle of American law
First, the EPA may bring an action in federal district court to compel compliance, using The theory of Pakootas's complaint, seeking to enforce the terms of the Order to a
the contempt powers of the district court as a potential sanction for non-compliance. facility within the United States, does not invoke extraterritorial application of United
9606(a). States law precisely because this case involves a domestic facility.
Second, the EPA may bring an action in federal district court seeking to impose fines of
up to $25,000 for each day that the party fails to comply with the order. 9606(b)(1). The second element of liability under CERCLA is that there must be a release or
Third, the EPA may initiate cleanup of the facility itself under 9604, and the party threatened release of a hazardous substance from the facility into the environment.
responsible for the pollution is potentially liable for the response and cleanup costs, plus See 9607(a)(4). To determine if there is an actual or threatened release here, we
treble damages. 9607(c)(3). consider the statutory definition of release. CERCLA defines a release, with certain
exceptions not relevant here, as any spilling, leaking, pumping, pouring, emitting,
Here, the EPA has not sought to enforce the Order through any of the mechanisms emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the
described above. Rather, Pakootas initiated this suit in federal district court under environment. 9601(22).
9659, the citizen suit provision of CERCLA. Section 9659(a)(1) provides a cause of action
for any person to commence a civil action against any person who is alleged to be in Here, several events could potentially be characterized as releases. First, there is the
violation of any standard, regulation, condition, requirement, or order which has become discharge of waste from the Trail Smelter into the Columbia River in Canada. Second,
effective pursuant to this chapter. Section 9659(c) gives the district court the power to there is the discharge or escape of the slag from Canada when the Columbia River enters
order such action as may be necessary to correct the violation, and to impose any civil the United States. And third, there is the leaching of heavy metals and other hazardous
penalty provided for the violation. Further, 9613(h)(2), the timing of review substances from the slag into the environment at the Site. Although each of these events
provision of CERCLA, grants federal courts jurisdiction to review an order issued under can be characterized as a release, CERCLA liability does not attach unless the release is
9606(a) when a party seeks to enforce the order. from a CERCLA facility.

IV. MERITS OF THE CASE: Here, as noted, the Order describes the facility as the Site; not the Trail Smelter in
Teck's primary argument is that, in absence of a clear statement by Congress that it Canada or the Columbia River in Canada. Pakootas has alleged that the leaching of
intended CERCLA to apply extraterritorially, the presumption against extraterritorial hazardous substances from the slag that is in the Site is a CERCLA release, and Teck has
application of United States law precludes CERCLA from applying to Teck in Canada. not argued that the slag's interaction with the water and sediment of the Upper Columbia
We need to address whether the presumption against extraterritoriality applies only if River is not a release within the intendment of CERCLA. Our precedents establish that
this case involves an extraterritorial application of CERCLA. So a threshold question is the passive migration of hazardous substances into the environment from where
whether this case involves a domestic or extraterritorial application of CERCLA. hazardous substances have come to be located is a release under CERCLA. In A & W
Smelter & Refiners, Inc. v. Clinton, it held that wind blowing particles of hazardous
Unlike other environmental laws such as the Clean Air Act, 42 U.S.C. 7401-7671q, substances from a pile of waste was a CERCLA release. Morever, in D.Idaho 2003, the
Clean Water Act, 33 U.S.C. 1251-1387, and Resource Conservation and Recovery Act passive movement and migration of hazardous substances by mother nature (no human
(RCRA), 42 U.S.C. 6901-6992k, CERCLA is not a regulatory statute. Rather, CERCLA action assisting in the movement) is still a release for purposes of CERCLA. We hold that
imposes liability for the cleanup of sites where there is a release or threatened release of the leaching of hazardous substances from the slag at the Site is a CERCLA release into
hazardous substances into the environment. (CERCLA holds a PRP liable for a disposal the United States from a facility in the United States-is entirely domestic.
that releases or threatens to release hazardous substances into the environment.).
CERCLA liability attaches when three conditions are satisfied: (1) the site at which there The third element of liability under CERCLA is that the party must be a covered person
is an actual or threatened release of hazardous substances is a facility under under 9607(a). Teck argues that it is not a covered person under 9607(a)(3)
9601(9); (2) a release or threatened release of a hazardous substance from the because it has not arranged for disposal of a hazardous substance by any other party
facility has occurred, 9607(a)(4); and (3) the party is within one of the four classes of or entity as required by 9607(a)(3), because Teck disposed of the slag itself, and
persons subject to liability under 9607(a). CERCLA defines the term facility as, in without the aid of another. Alternatively, Teck argues that if it is an arranger under
relevant part, any site or area where a hazardous substance has been deposited, stored, 9607(a)(3), then basing CERCLA liability on Teck arranging for disposal of slag in Canada
disposed of, or placed, or otherwise come to be located. 9601(9). The Order defines is an impermissible extraterritorial application of CERCLA.
the facility in this case as the Site, which is described as the extent of contamination in Assuming that Teck is an arranger under 9607(a)(3), we consider whether the fact
the United States associated with the Upper Columbia River. The term facility has been that the act of arranging in Canada for disposal of the slag makes this an extraterritorial
broadly construed by the courts, such that in order to show that an area is a facility, the application of CERCLA. Teck argues that because it arranged in Canada for disposal, that
plaintiff need only show that a hazardous substance under CERCLA is placed there or has is, the act of arranging took place in Canada even though the hazardous substances came
otherwise come to be located there. The Order defines the facility as being entirely to be located in the United States, it cannot be held liable under CERCLA without
within the United States, and Teck does not argue that the Site is not a CERCLA facility. applying CERCLA extraterritorially.
Because the CERCLA facility is within the United States, this case does not involve an The text of 9607(a)(3) applies to any person who arranged for the disposal of
extraterritorial application of CERCLA to a facility abroad. hazardous substances. The term person includes, inter alia, an individual, firm,
corporation, association, partnership, consortium, joint venture, [or] commercial entity.
9601(21). On its face, this definition includes corporations such as Teck, although the
definition does not indicate whether foreign corporations are covered. Teck argues that United States. The difference between a domestic application of United States law and a
because the Supreme Court recently held that the term any court as used in 18 U.S.C. presumptively impermissible extraterritorial application of United States law becomes
922(g)(1) does not include foreign courts, we should interpret the term any person so apparent when we consider the conduct that the law prohibits. In the case of Steele, the
as not to include foreign corporations. prohibited conduct, the unauthorized use and reproduction of Bulova's registered
In Small v. United States, Chief Justice Marshall held for the Court that the words any trademark, took place in Mexico but the harm, the dilution of Bulova's trademark, took
person or persons, as used in a statute prohibiting piracy on the high seas, must not place in the United States. The Court therefore held that there was jurisdiction in that
only be limited to cases within the jurisdiction of the state, but also to those objects to case.
which the legislature intended to apply them. The Court held that any person or
persons did not include crimes committed by a person on the high seas, on board of Here, the operative event creating a liability under CERCLA is the release or threatened
any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a release of a hazardous substance. Arranging for disposal of such substances, in and of
vessel belonging exclusively to subjects of a foreign state. However, the Court held that itself, does not trigger CERCLA liability, nor does actual disposal of hazardous
even though the statute did not specifically enumerate foreign parties as persons, the substances. A release must occur or be threatened before CERCLA is triggered. A party
statute did apply to punish piracy committed by foreign parties against vessels belonging that arranged for disposal of a hazardous substance under 9607(a)(3) does not
to subjects of the United States. become liable under CERCLA until there is an actual or threatened release of that
substance into the environment. Arranging for disposal of hazardous substances, in itself,
Palmer relied upon two benchmarks for determining whether terms such as any is neither regulated under nor prohibited by CERCLA. Further, disposal activities that
person apply to foreign persons: (1) the state must have jurisdiction over the party, and were legal when conducted can nevertheless give rise to liability under 9607(a)(3) if
(2) the legislature must intend for the term to apply. Regarding jurisdiction, Teck argued there is an actual or threatened release of such hazardous substances into the
in the district court that there was no personal jurisdiction over it. The district court held environment. In Cadillac Fairview/California, Inc. v. US, it held that a party that sold a
that there was personal jurisdiction, and Teck has not appealed that determination. product to another party arranged for disposal of a hazardous substance,
Because a party can waive personal jurisdiction, we are not required to consider it sua characterizing the conduct at issue in Cadillac Fairview/California I as legal at the time.
sponte. In Smith v. Idaho, the longstandng rule that personal jurisdiction, in the
traditional sense, can be waived and need not be addressed sua sponte. The location where a party arranged for disposal or disposed of hazardous substances is
not controlling for purposes of assessing whether CERCLA is being applied
Nevertheless, we agree with the district court that there is specific personal jurisdiction extraterritorially, because CERCLA imposes liability for releases or threatened releases
over Teck here. Because there is specific personal jurisdiction over Teck here based on of hazardous substances, and not merely for disposal or arranging for disposal of such
its allegedly tortious act aimed at the state of Washington, the first Palmer benchmark is substances. Because the actual or threatened release of hazardous substances triggers
satisfied, and we can appropriately construe the term any person to apply to Teck. CERCLA liability, and because the actual or threatened release here, the leaching of
hazardous substances from slag that settled at the Site, took place in the United States,
The second Palmer benchmark is that the legislature must intend for the statute to apply this case involves a domestic application of CERCLA.
to the situation. Except for the statutory definition of any person, CERCLA is silent
about who is covered by the Act. But CERCLA is clear about what is covered by the Act. Our conclusion is reinforced by considering CERCLA's place within the constellation of
CERCLA liability attaches upon release or threatened release of a hazardous substance our country's environmental laws, and contrasting it with RCRA: Unlike [CERCLA], RCRA
into the environment. CERCLA defines environment to include any other surface is not principally designed to effectuate the cleanup of toxic waste sites or to compensate
water, ground water, drinking water supply, land surface or subsurface strata, or those who have attended to the remediation of environmental hazards. RCRA's primary
ambient air within the United States or under the jurisdiction of the United States. purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper
9601(8). CERCLA's purpose is to promote the cleanup of hazardous waste sites where treatment, storage, and disposal of that waste which is nonetheless generated, so as to
there is a release or threatened release of hazardous substances into the environment minimize the present and future threat to human health and the environment.
within the United States. In ARC Ecology, US Dept. of Air Force, Congress intended RCRA regulates the generation and disposal of hazardous waste, whereas CERCLA
CERCLA to apply to cleanup hazardous waste sites in the United States. Because the imposes liability to clean up a site when there are actual or threatened releases of
legislature intended to hold parties responsible for hazardous waste sites that release or hazardous substances into the environment. It is RCRA, not CERCLA, that governs
threaten release of hazardous substances into the United States environment, the second prospectively how generators of hazardous substances should dispose of those
Palmer benchmark is satisfied here. substances, and it is the Canadian equivalent of RCRA, not CERCLA, that regulates how
Teck disposes of its waste within Canada.
Although the Palmer analysis supports the proposition that CERCLA applies to Teck,
Palmer of course does not address the distinction between domestic or extraterritorial Here, the district court assumed, but did not decide, that this suit involved
application of CERCLA. The Palmer analysis, however, in what we have termed its second extraterritorial application of CERCLA because to find there is not an extraterritorial
benchmark, brings to mind the domestic effects exception to the presumption against application of CERCLA in this case would require reliance on a legal fiction that the
extraterritorial application of United States law. In Steele v. Bulova, the case revolves releases' of hazardous substances into the Upper Columbia River Site and Lake
around finding jurisdiction in a trademark suit against a person in Mexico who Roosevelt are wholly separable from the discharge of those substances into the Columbia
manufactured counterfeit Bulova watches that then entered and caused harm within the River at the Trail Smelter.
However, what the district court dismissed as a legal fiction is the foundation of the disposal or treatment of hazardous substances owned or possessed by such person [or]
distinction between RCRA and CERCLA. If the Trail Smelter were in the United States, the by any other party or entity
discharge of slag from the smelter into the Columbia River would potentially be
regulated by RCRA and the Clean Water Act. And that prospective regulation, if any, We followed this approach in Cadillac Fairview/California I, where we said with forcible
would be legally distinct from a finding of CERCLA liability for cleanup of actual or reasoning: Liability is not limited to those who own the hazardous substances, who
threatened releases of the hazardous substances into the environment from the disposal actually dispose of or treat such substances, or who control the disposal or treatment
site, here the Upper Columbia River Site. That the Trail Smelter is located in Canada does process. The language explicitly extends liability to persons otherwise arranging for
not change this analysis, as the district court recognized. disposal or treatment of hazardous substances whether owned by the arranger or by
any other party or entity, at any facility or incineration vessel owned or operated by
CERCLA is only concerned with imposing liability for cleanup of hazardous waste another party or entity. In Kalamazoo River Study Group v. Menasha Corp., it held that
disposal sites where there has been an actual or threatened release of hazardous defendant was potentially liable as an arranger when it discharged hazardous substances
substances into the environment. CERCLA does not obligate parties (either foreign or into a river.
domestic) liable for cleanup costs to cease the disposal activities such as those that made
them liable for cleanup costs; regulating disposal activities is in the domain of RCRA or The text of 9607(a)(3) can also be modified to support a different meaning, the one
other regulatory statutes. that Teck advances on this appeal. Teck argues that the phrase by any other party or
entity refers to or otherwise arranged for disposal or treatment, and so, the argument
We hold that applying CERCLA here to the release of hazardous substances at the Site is a runs, arranger liability does not attach unless one party arranged with another party to
domestic, rather than an extraterritorial application of CERCLA, even though the original dispose of hazardous substances. If we accept this position, then a generator of
source of the hazardous substances is located in a foreign country. hazardous substances who disposes of the waste alone and with no other participant
may defeat CERCLA liability, because the generator had not arranged with a second
V. LIABILITY: party for disposal of the waste. But this interpretation would appear to require the
Teck's only other argument-that it is not covered by 9607(a)(3) because it has not removal of the two commas that offset the phrase by any other party or entity, so that
arranged for disposal of hazardous substances by any other party or entity because, the relevant language would read any person who arranged for disposal or treatment of
if the facts in the complaint are taken as true, Teck disposed of the slag itself. hazardous substances owned or possessed by such person by any other party or entity.
Preliminarily, we note that neither Pakootas, nor the Order, specifically allege that Teck
is an arranger under 9607(a)(3). Rather, the Order states that Teck is a responsible In Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., we perhaps
party under Sections 104, 107, and 122 of CERCLA, 42 U.S.C. 9604, 9607, and 9622. implicitly, albeit summarily, suggested that this reading might be appropriate, stating:
UAO at 6. The parties have, however, focused in their arguments solely on 9607(a)(3). Nor has [Plaintiff] alleged that [Defendant] Ferry arranged for the contaminated soil to
be disposed of by any other party or entity under 9607(a)(3). Ferry disposed of the soil
Section 9607(a)(3) holds liable parties that arranged for the disposal of hazardous itself by spreading it over the uncontaminated areas of the property. The clause by any
substances. It states, in relevant part, the following: Any person who by contract, other party or entity clarifies that, for arranger liability to attach, the disposal or
agreement, or otherwise arranged for disposal or treatment, or arranged with a treatment must be performed by another party or entity, as was the case here. Thus it
transporter for the transport for disposal or treatment, of hazardous substances owned can be argued that an implication from Kaiser Aluminum supports Teck's view.
or possessed by such person, by any other party or entity, at any facility or incineration
vessel owned or operated by another party or entity and containing such substances Teck's argument relying on implication from Kaiser Aluminum would create a gap in the
shall be liable for certain costs of cleanup. 9607(a)(3). CERCLA liability regime by allowing a generator of hazardous substances potentially to
avoid liability by disposing of wastes without involving a transporter as an intermediary.
CERCLA or particularly, Section 9607(a)(3) does not make literal or grammatical sense If the generator disposed of the waste on the property of another, one could argue that
as written. It is by no means clear to what the phrase by any other party or entity the generator would not be liable under 9607(a)(1) or (a)(2) because both
refers. Pakootas argues that it refers to a party who owns the waste; and Teck argues subsections apply to the owner of a facility; as we described above the relevant facility is
that it refers to a party who arranges for disposal with the owner. To make sense of the the site at which hazardous substances are released into the environment, not
sentence we might read the word or into the section, which supports Pakootas's necessarily where the waste generation and dumping took place. Liability as a
position, or we might delete two commas, which supports Teck's position. Neither transporter under 9607(a)(4) might not attach because transporter liability applies to
construction is entirely felicitous. any person who accepts or accepted any hazardous substance for transport. Although
we do not here decide the contours of transporter liability, one could argue that a
Section 9607(a)(3)'s phrase by any other party or entity can be read to refer to generator who owns hazardous substances cannot accept such hazardous substances
hazardous substances owned or possessed by such person, such that parties can be for transport because they are already held by the generator. We hesitate to endorse a
liable if they arranged for disposal of their own waste or if they arranged for disposal of statutory interpretation that would leave a gaping and illogical hole in the statute's
wastes owned by any other party or entity. This would mean that a party need not own coverage, permitting argument that generators of hazardous waste might freely dispose
the waste to be liable as an arranger. But it would require reading the word or into the of it themselves and stay outside the statute's cleanup liability provisions. We think that
provision, so that the relevant language would read any person who arranged for was not what was intended by Congress's chosen language and statutory scheme.
The ambiguous phrase by any other party or entity cannot sensibly be read to refer 9607(a)(3) because it did not arrange for disposal of hazardous substances by any other
both to the language urged by Pakootas and to that urged by Teck in their differing party or entity.
theories of statutory interpretation. In interpreting the turbid phrase and punctuation on
which the parties have vigorously pressed contradictory theories, we necessarily
navigate a quagmire. Yet, in the face of statutory ambiguity, 9607(a)(3) must be given
a liberal judicial interpretation consistent with CERCLA's overwhelmingly remedial
statutory scheme.

Pakootas and the State of Washington suggest that we can resolve the inconsistent and
mutually-exclusive language in Cadillac Fairview/California I and Kaiser Aluminum by
dismissing as ambiguous or as dicta the statement in Kaiser Aluminum that [n]or has
[Plaintiff] alleged that Ferry arranged for the contaminated soil to be disposed of by any
other party or entity under 9607(a)(3). The argument is that it is unclear whether we
meant in Kaiser Aluminum that we did not need to reach the question because Plaintiff
had not alleged that Ferry was an arranger, or instead that Plaintiff had alleged that
Ferry was an arranger but that we rejected that interpretation.

We conclude that Pakootas and the State of Washington are correct. The two sentences
from Kaiser Aluminum quoted above are the only two sentences in that opinion to
discuss arranger liability. The opinion contains no analysis of the text of 9607(a)(3),
and does not discuss arguments for or against interpreting 9607(a)(3) to require the
involvement of another party or entity for arranger liability to attach. The ambiguous
discussion of 9607(a)(3) liability was not in our view a holding, but rather a prelude
to discussing why the defendant in Kaiser Aluminum was potentially liable as an owner
of a facility under 9607(a)(2) or as a transporter under 9607(a)(4). And perhaps
most importantly, the statement in question may be simply a description of what was not
alleged by a party, rather than our court's choice of a rule of law.

Further, the statement in Kaiser Aluminum bears the hallmarks of dicta. In United States,
it is clear that a statement is made casually and without analysis, where the statement is
uttered in passing without due consideration of the alternatives, or where it is merely a
prelude to another legal issue that commands the panel's full attention, it may be
appropriate to re-visit the issue in a later case. Because we view the statement in Kaiser
Aluminum as offhand, unreasoned, and ambiguous, rather than as an intended choice of a
rule, we consider the Ninth Circuit's law to be represented by Cadillac
Fairview/California I. And under Cadillac Fairview/California I, the phrase by any other
party or entity refers to ownership of the waste, such that one may be liable under
9607(a)(3) if they arrange for disposal of their own waste or someone else's waste, and
that the arranger element can be met when disposal is not arranged by any other party
or entity. We hold instead that Teck is potentially liable under 9607(a)(3), and we
reject Teck's argument that it is not liable under 9607(a)(3) because it did not arrange
for disposal of its slag with any other party or entity.

VI. District court correctly denied Teck's motion to dismiss Pakootas's complaint for
failure to state a claim, and reject Teck's arguments to the contrary. Applying CERCLA to
the Site, as defined by the Order issued by the EPA, is a domestic application of CERCLA.
The argument that this case presents an extraterritorial application of CERCLA fails
because CERCLA liability does not attach until there is an actual or threatened release of
hazardous substances into the environment; the suit concerns actual or threatened
releases of heavy metals and other hazardous substances into the Upper Columbia River
Site within the United States. We reject Teck's argument that it is not liable under
 Olachukwu NNADILI, et al., Plaintiffs, v. CHEVRON U.S.A. INC. Defendant medical monitoring, in addition to the instant claims for property and emotional distress
United States District Court, District of Columbia | June 1, 2006 damages. On October 4, 2004, however, after air sampling conducted by Chevron

indicated that the air quality in selected Riggs Park homes did not exceed Environmental

Plaintiffs in these consolidated cases assert various claims against Chevron U.S.A. Inc. Protection Agency ("EPA") thresholds, plaintiffs voluntarily dismissed all claims

("Chevron") based upon the presence of petroleum hydrocarbons in the soil and predicated on evidence of actual exposure to gasoline constituents. (See Oct. 4, 2004

groundwater below certain properties in an area of Washington, D.C. known as Riggs Stipulated Order ("Stip.Order").) Specifically, plaintiffs stipulated as follows:

Park. They contend that the contamination resulted from the discharge or release of All plaintiffs agree that they do not now allege and' will not allege or attempt to prove in

gasoline from a retail service station formerly owned and operated by Chevron and seek these actions that any plaintiff was exposed to petroleum hydrocarbons or other

damages for diminution in the value of their properties and for emotional distress. They contaminants of a nature, intensity and duration that can be linked through valid

also seek injunctive relief under the Resource Conservation and Recovery Act, 42 U.S.C. scientific evidence to personal injury or to a risk of injury or death. Nor will plaintiffs

6901 et seq. ("RCRA"). attempt to argue or prove that any emotional distress alleged to have been suffered by

Chevron has moved for partial summary judgment with respect to the following claims: any plaintiff is the result of any actual exposure to petroleum hydrocarbons or other

(1) emotional distress damages; (2) common law strict liability; (3) statutory claims contaminants. In addition, plaintiffs will not attempt to argue or prove that a valid

under the RCRA; and (4) claims by individuals whose properties are not situated over scientific basis exists for any potential for exposure.

subsurface contamination. For the reasons set forth below, the Court will grant summary In connection with this stipulation, plaintiffs also sought and were granted leave to

judgment as to the claims for strict liability and for violation of the RCRA, but will deny file their current amended complaints, which do not include claims for personal injury,

Chevron's motion in all other respects. wrongful death, or medical monitoring. As a result, plaintiffs are seeking based on

B A C K G R O U N D claims of trespass, nuisance, negligence, and common law strict liability damages only

Plaintiffs include approximately 500 current and former residents of, or property owners for diminution in the value of their properties and for emotional distress, as well as

within, the Riggs Park neighborhood of Washington, D.C. According to plaintiffs, from injunctive relief under the RCRA. On December 5, 2005, prior to the close of discovery,

approximately 1956 through June 21, 1993, Chevron, or its predecessor-in-interest, the Court entered a Revised Stipulated Scheduling Order pursuant to which Chevron filed

owned and operated a retail gasoline service station at 5801 Riggs Road in Chillum, the motion for partial summary judgment that is presently the Court.

Maryland, which is on the Maryland side of the border between Maryland and As agreed to and proposed by the parties, fact and expert discovery has been stayed

Washington, D.C. They allege that during the time that Chevron owned and operated the pending disposition of the instant motion. The Revised Stipulated Scheduling Order

service station, gasoline was discharged or released into the ground from the station's further provides that additional dispositive motions, as appropriate, shall be permitted

underground storage tanks ("USTs"). Plaintiffs further allege that the gasoline following the completion of discovery.

subsequently migrated into the Riggs Park neighborhood, contaminating the air, soil, and

groundwater of the properties currently or formerly owned or occupied by plaintiffs. In

their initial complaints, plaintiffs asserted claims for wrongful death, personal injury, and
A N A L Y S I S with a choice of law in an action sounding in tort, a court in the District of Columbia will

I. Summary Judgment Standard: "balance the competing interests of the two jurisdictions, and apply the law of the

Rule 56 of the Federal Rules of Civil Procedure provides that a motion for summary jurisdiction with the more `substantial interest' in the resolution of the issue." Lamphier

judgment shall be granted if the pleadings, depositions, answers to interrogatories, v. Wash. Hosp. Ctr., 524 A.2d 729, 731 (D.C.1987); see also Jaffe v. Pallotta

admissions on file, and affidavits show that there is no genuine issue of material fact, and TeamWorks, 374 F.3d 1223, 1227 (D.C.Cir.2004). To determine which jurisdiction

that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty maintains a more substantial interest, District of Columbia courts consider the factors

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the listed in Section 145 of the Restatement (Second) of Conflict of Laws (1971).

fact must be capable of affecting the outcome of the litigation, and to be genuine, the These include: (1) the place of injury; (2) the place where the conduct causing the injury

issue must be supported by admissible evidence sufficient for a reasonable trier of fact to occurred; (3) the domicile, residence, place of incorporation and place of business of the

find in favor of the non-moving party. Id. at 247-48, 106 S.Ct. 2505; see also Laningham v. parties; and (4) the place where the relationship between the parties is centered.

U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987).

To avoid summary judgment the nonmoving party's opposition must consist of more Applying these factors to the instant facts, the Court finds that between the District of

than mere unsupported allegations or denials and must be supported by affidavits or Columbia and Maryland, the District of Columbia has the greater interest in the outcome

other competent evidence setting forth specific facts showing that there is a genuine of this litigation.3 While Chevron's conduct occurred mainly in Maryland, where its

issue for trial. The non-moving party must provide evidence that would permit a former service station and USTs are situated, and a handful of plaintiffs currently reside

reasonable jury to find in the non-moving party's favor. "If the evidence is merely in that state, all of the alleged contamination at issue in this litigation occurred in the

colorable, or is not significantly probative, summary judgment may be granted." District of Columbia, all of the alleged injuries were sustained in the District of Columbia,

Nevertheless, "because summary judgment is a drastic measure, courts should grant it and the overwhelming majority of plaintiffs still reside in the District of Columbia.

with caution so that no person will be deprived of his or her day in court to prove a Accordingly, the Court concludes that all of the tort claims asserted in these consolidated

disputed material factual issue." This reason, in considering a motion for summary cases are governed by the laws of the District of Columbia.

judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor." III. Emotional Distress Damages

Chevron first contends that plaintiffs cannot recover damages for emotional distress as a

II. Choice of Law matter of law. Relying primarily on case law involving claims for intentional and

"When deciding state-law claims under diversity or supplemental jurisdiction, federal negligent infliction of emotional distress, Chevron argues that courts in the District of

courts apply the choice-of-law rules of the jurisdiction in which they sit." Ideal Elec. Sec. Columbia consistently have barred such claims absent proof of physical injury or

Co., Inc. v. Int'l Fid. Ins. Co., 129 F.3d 143, 148 (D.C.Cir.1997). The District of Columbia has physical endangerment. To the extent that District of Columbia case law does not

adopted the "substantial interest" approach to choice of law questions. Greycoat Hanover expressly address claims for emotional distress damages based on property damage

F Street Ltd. P'ship v. Liberty Mut. Ins. Co., 657 A.2d 764, 767-68 (D.C.1995). When faced alone, however, Chevron further asserts that the Court should look to the law of

Maryland for guidance. According to Chevron, plaintiffs' claims for emotional distress
damages cannot survive under established Maryland precedent. In support of it position, would permit recovery of emotional distress damages for intentional torts involving

Chevron principally relies on the Maryland Court of Appeals decision in Dobbins v. Wash. personal, but not real, property damage. Accordingly, the Court concludes that emotional

Suburban Sanitary Comm'n, the court held that "a plaintiff cannot ordinarily recover for distress damages are recoverable for trespass actions under District of Columbia law.

emotional injuries sustained solely as a result of negligently inflicted damage to the Furthermore, with respect to all of plaintiffs' tort claims, including those sounding in

plaintiff's property." The court reasoned that "emotional injuries are not the trespass, the Court concludes that District of Columbia law permits emotional distress as

`consequences that ensue in the ordinary and natural course of events' from negligently an element of damages because District of Columbia courts follow the Restatement

inflicted property damage," and that "such injuries should not be contemplated, in light (Second) of Torts. (See Pl.'s Mem. at 14-15 nn. 14-16 and cases cited therein.) Section 905

of all the circumstances, `as a natural and probable consequence' of a negligently inflicted of the Restatement, which applies to all torts, provides that: "Compensatory damages

injury to property." For additional support, Chevron points to instances where the that may be awarded without proof of pecuniary loss include compensation (a) for bodily

Maryland Court of Appeals has refused to award emotional distress damages based on harm, and (b) for emotional distress, which pertains specifically to damages available in

property damage caused by trespass. actions sounding in trespass, provides in pertinent part: if one is entitled to a judgment

Finally, Chevron argues that the October 4, 2004 Stipulated Order independently bars for harm to land resulting from a past invasion and not amounting to a total destruction

plaintiffs' claims for emotional distress damages because it eliminates any factual basis of value, the damages include compensation for discomfort and annoyance to him as an

for such claims. According to Chevron, not only have plaintiffs stipulated that they have occupant.

suffered no emotional distress from actual exposure to contamination, but they also have As Chevron accurately asserts, there is scant case law from the District of Columbia

stipulated that (1) no plaintiff has ever been exposed; and (2) no plaintiff will have the applying Sections 905 and 929. (See Def.'s Reply at 5.)5Nevertheless, the District of

potential for exposure. Chevron thus argues that the Stipulated Order, as a matter of Columbia's established rule that a plaintiff may recover damages for emotional distress

undisputed fact, removes any reasonable basis for emotional distress. for intentional torts, which the Court of Appeals for the District of Columbia has

Stated simply, Chevron contends that property damage alone cannot serve as a basis for endorsed with respect to intentional torts involving personal property, see Parker, 557

recovering damages for emotional distress. The Court disagrees. A.2d at 1322-23, and the absence of any contrary suggestion with respect to real

Under District of Columbia law, it is firmly established that a plaintiff may recover property, lead the Court to conclude that the District of Columbia would follow Sections

damages for mental suffering unaccompanied by physical injury where the plaintiff sues 905 and 929 of the Restatement to permit emotional distress as an element of damages

for an intentional tort. It is also clear that trespass is an intentional tort. Although the for the tort claims plaintiffs have asserted. Moreover, courts in other jurisdictions have

parties have not cited and the Court has been unable to find a District of Columbia applied these sections of the Restatement to permit emotional distress damages in tort

decision addressing the availability of emotional distress damages in a trespass case, the cases similar to the instant claims. See, e.g., French v. Ralph E. Moore, Inc., 203 Mont.

decision in Parker is instructive. In that case, the Court of Appeals for the District of 327, 661 P.2d 844, 847-48 (1983) (holding damages for mental anguish recoverable for

Columbia, applying the established rule regarding intentional torts, concluded that claims trespass, nuisance, and negligence claims arising out of gasoline discharge from

emotional distress damages are available in an action for conversion of personal USTs).

property. Parker, 557 A.2d at 1322-23. Here, the Court can find no meaningful distinction Chevron's reliance on District of Columbia cases addressing causes of action for

between personal and real property to suggest that courts in the District of Columbia intentional and negligent infliction of emotional distress is misplaced. Plaintiffs are not
seeking damages for the separate torts of intentional or negligent infliction of emotional and anxiety over future exposure to toxic chemicals; (2) fear and anxiety over any

distress.6 Rather, plaintiffs merely claim emotional distress as an element of damages for possible diminution in value of their homes; (3) fear, anxiety, and annoyance resulting

the traditional tort claims they have asserted e.g., trespass, nuisance, negligence. from the loss of the use and enjoyment of certain parts of their properties; and (4)

Chevron, in fact, acknowledges as much. (See Def.'s Mem. at 4, In their most recent humiliation over the contaminated state of their neighborhood.

amended complaints, plaintiffs dropped their claims for intentional and negligent Chevron does not argue that these assertions are directly contradicted by the Stipulated

infliction of emotional distress; whereas prior complaints asserted "claims for intentional Order but instead argues that plaintiffs' claims are "irrational and unreasonable" in light

and negligent infliction of emotional distress," current versions assert "emotional of the Order. (Def.'s Reply at 7.) Questions about the reasonableness of plaintiffs' alleged

distress damages as part of other claims". fear and anxiety, however, are for the jury.

The distinction between intentional and negligent infliction of emotional distress as Accordingly, the Court will deny Chevron's motion for partial summary judgment with

independent causes of action and emotional distress as an element of damages for respect to plaintiffs' damage claims based on emotional distress.

traditional tort claims is illustrated by the decision in Adams, supra. In that case, the

Court of Appeals for the District of Columbia rejected plaintiff's claim for intentional IV. Common Law Strict Liability

infliction of emotional distress, because the plaintiff had failed to prove all the elements Plaintiffs allege that Chevron's storage of gasoline in USTs at the specific service station

for such a cause of action but permitted the plaintiff to claim, as an element of damages at issue constitutes an abnormally dangerous activity, thus giving rise to claims for

for the tort of wrongful termination, compensation for any emotional distress or mental common law strict liability. Chevron argues otherwise, and the Court agrees.

anguish resulted therefrom. In National Telephone Cooperative Ass'n v. Exxon Corp., which is similar to these cases, the

In other words, the court permitted emotional distress as an element of damages for a district court concluded that the Court of Appeals for the District of Columbia "would

tort claim, even though the plaintiff could not meet the requirements of an independent likely follow the majority of jurisdictions that have held that a defendant does not engage

cause of action for intentional infliction of emotional distress. Id.; see also Williams v. in abnormally dangerous conduct by storing gasoline [in] USTs in commercial

Baker, 572 A.2d 1062, 1064 (D.C.1990) ("This jurisdiction's requirement that to be environments in which leaks are not likely to jeopardize human safety." Id. at 8; see also

compensable [in claims for negligent infliction of emotional distress] mental suffering id. ("Where USTs are buried beneath gasoline stations located in commercial settings, the

must flow from physical injury is consistent with the historic reluctance of the common overwhelming majority of courts have concluded that such conduct is not `abnormally

law to allow recovery for mental distress other than as an element of damages when an dangerous.

independent tort is established.") Applying the factors set forth in the Restatement for determining whether an activity is

Finally, Chevron's arguments regarding the Stipulated Order are without merit. As abnormally dangerous, the Court reasoned: Unlike archetypical abnormally dangerous

plaintiffs contend, the Stipulated Order has reduced their claims for emotional distress activities such as blasting, there is no evidence to suggest that the risk of seepage [from

damages to those arising from: USTs] cannot be eliminated by the exercise of reasonable care, or that the harm to be

(1) fear of the unknown, consisting of (a) fear and anxiety over whether plaintiffs or their anticipated from the underground seepage of gasoline is `grave.' Hudson, 566 P.2d at

families were exposed to toxic chemicals during the 15 year period from 1989, when the 178; see also Smith, 665 A.2d at 1220 (Gasoline and other petroleum products can be

release was discovered, to 2004, when the air test results were disclosed; and (b) fear stored and dispensed safely with reasonable care. We are not convinced that the risk
cannot be eliminated by the exercise of reasonable care. Absent negligence or application supply. In Yommer, the court similarly concluded that the placement of USTs next to a

of an outside force, use of a USTS does not create a high degree of risk of harm to the residential neighborhood and "virtually on top of a family's drinking-water well," Nat'l

person, land or chattels of another. Moreover those risks that do exist can be minimized Tel. Co-op. Ass'n, 38 F.Supp.2d at 9, constituted an abnormally dangerous

by the exercise of reasonable care by the owner or possessor of the tank. Perhaps activity, Yommer, 257 A.2d at 138. Again, by contrast, Chevron's USTs, While located

because reasonable care will typically guard against any harm that USTs may inflict, the nearby a residential neighborhood, are not situated near any sources of drinking water

storage of [gasoline] in tanks is a common use and is valuable to a modern society. Smith, and are in an area populated with commercial enterprises. As other courts have found,

665 A.2d at 1220; see also Walker Drug Co., 902 P.2d at 1233 ([T]he operation of a gas "USTs located beneath the ground of gasoline stations in commercial zones are

station is common, appropriate, and of significant value to the community.); Arlington commonplace and are of great utility to the community."

Forest, 774 F.Supp. at 391 (holding that gasoline stations fulfill essential transportation Accordingly, the Court will grant Chevron's motion for partial summary judgement with

needs in modern society). respect to plaintiffs' claims for common law strict liability and enter judgment in favor of

Here too, application of the Restatement factors demonstrates that Chevron's conduct Chevron on Count One of the Nnadili Complaint and Count v. of the Abney Complaint.

was not abnormally dangerous as a matter of law. Because plaintiffs derive their water

from the District of Columbia's water utility, rather than from the groundwater in the V. Statutory Claims Under the RCRA

area, there does not exist a high degree of risk that the utilization of USTs at the service Plaintiffs in the Abney case allege two claims under the RCRA. In Count VII of

station location will cause great harm to plaintiffs or others through exposure to the Abney Complaint, plaintiffs assert a citizen suit under 6972(a)(1)(A) to compel

contaminated water. Since the drinking water supply to the residential area is from a Chevron to comply with unspecified provisions of the RCRA and the regulations

public water supply, there is no known risk to the drinking water from contamination. promulgated thereunder. In Count VIII, they assert a citizen suit under 6972(a)(1)(B)

Indeed, plaintiffs have stipulated that there exists no possibility of harmful exposure to to compel Chevron to perform certain remedial measures. Plaintiffs have, however,

contaminants stemming from Chevron's operations. There is also no evidence in the "withdraw[n] their claim for injunctive relief under the RCRA" (Pl.'s Opp'n at 30),

record that gasoline cannot be stored in USTs safely with reasonable care. And finally, because the EPA, on November 26, 2002, issued an Administrative Order, pursuant to

although the service station is located in close proximity to a residential neighborhood, it 6973 of the RCRA, requiring Chevron to investigate and, if necessary, to develop a

is also situated among other commercial properties, including several other retail remedial approach to the conditions that are the subject of this litigation. (See Def.'s Ex. 3

gasoline service stations and a dry cleaner. at III.) Therefore, because plaintiffs have abandoned these claims, the Court will grant

Nothing in Brennan Construction Co. v. Cumberland, 29 App. D.C. 554 (1907), and Yommer Chevron's motion for partial summary judgment with respect to Counts VII and VIII of

v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969), on which plaintiffs primarily rely, the Abney Complaint.

mandates a contrary result. In Brennan Construction, the defendant "constructed, almost

over the bed of the [Potomac River], two large tanks, and stored therein some 14,000 VI. Claims of Individuals Whose Properties Do Not Overlie Subsurface Contamination

gallons of petroleum residuum, and permitted a considerable quantity to escape to the According to Chevron, at least some plaintiffs own or reside in homes that are not

river, remain thereon for weeks, and injure innocent persons." Brennan Constr. Co., 29 situated over the subsurface contamination at issue in this litigation. For the purposes of

App. D.C. at 561. Here, Chevron stored gasoline in USTs away from any potable water its motion, Chevron identifies six plaintiffs who it contends fall into this category: (1)
Mary and Eunice Minor, of 828 Jefferson Street, N.E., Washington, DC; (2) Jacob and judgment. The maps on which Chevron relies are presented without any affidavit

Gloria Carey, formerly of 5204 12th Street, N.E., Washington DC; and (3) Tometta and explaining who prepared them, how they were prepared, and whether they attempt to

Fred Dendy, of 618 Oglethorpe Street, N.E., Washington, DC. (Id.) In support of this delineate the current extent of contamination.11 Without anything to substantiate their

contention, Chevron relies on certain maps purportedly published by the U.S. Army authenticity, the maps would be inadmissible at trial to establish the plume boundaries

Corps of Engineers, which tend to show that the properties of these six plaintiffs "and and thus cannot be considered for that purpose on a motion for summary judgment. To

others" are not situated over the plume of contamination. be admissible at the summary judgment stage, documents must be authenticated by and

Chevron also notes that, instead of claiming that their properties directly overlie attached to an affidavit that meets the requirements of Rule 56(e).

subsurface contamination, these six plaintiffs merely allege that their properties are While the Court recognizes that evidence "should not be excluded on summary judgment

"located adjacent to the underground Plume of contamination." on hypertechnical grounds," Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir.1989), strict

Chevron argues that it is entitled to judgment as a matter of law on all claims asserted by adherence to the requirements of Rule 56(e) is particularly appropriate here because the

these six plaintiffs and others whose properties are not located over the subsurface delineation of the plume boundaries is arguably a matter of expert opinion rather than a

contamination. (See Def.'s Mem. at 29-33.) According to Chevron, a party cannot recover pure question of fact, see id. (unsworn expert report is not competent to be considered

damages for alleged diminution in value based upon mere proximity to environmental on a motion for summary judgment). To the extent that the maps were prepared by an

contamination. Relying primarily on case law from other jurisdictions, Chevron argues expert, plaintiffs have not had the opportunity to depose the expert or assess the facts

that a plaintiff either must prove actual physical impact upon the subject property, see, and methodology on which the expert relied to form an opinion about the scope of

e.g., Adams v. Star Enter., 51 F.3d 417, 422-25 (4th Cir.1995) (Virginia law); Berry v. contamination. Moreover, expert discovery on this issue and others has not yet been

Armstrong Rubber Co., 989 F.2d 822, 829 (5th Cir.1993), cert. denied, 510 U.S. 1117, 114 completed in this litigation.

S.Ct. 1067, 127 L.Ed.2d 386 (1994) (Mississippi law), or substantial interference with the In short, because Chevron has failed to support its motion with admissible evidence, the

use and enjoyment of the property, see, e.g., Exxon v. Yarema, 69 Md.App. 124, 516 A.2d Court finds that genuine issues of material fact exist, which preclude it from granting

990, 1004 (1986), in order to maintain a valid claim for tort damages. Chevron asserts summary judgment on these claims.

that those plaintiffs whose properties are not situated over the plume cannot prove the
requisite impact, and that under District of Columbia law, diminution of market value
O R D E R
alone, with no accompanying personal or property damage does not constitute an
Defendant's Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN
unreasonable interference with the use and enjoyment of land. See Nat'l Tel. Coop.
PART. Parties shall meet and confer on all outstanding discovery issues and submit to the
Ass'n, 38 F.Supp.2d at 14 (so holding in context of private nuisance claim).
Court a joint proposal for the scheduling of the completion of discovery. Any plaintiff
Without considering the merits of Chevron's legal arguments, the Court must deny its
who intends to proceed pro se must attend the status conference.
motion as to these claims because Chevron has failed to submit admissible evidence to

establish, as a factual matter, that one or more plaintiffs own or reside on property that is

not situated over subsurface contamination. It is well settled that only admissible

evidence may be considered by the trial court in ruling on a motion for summary