SAMUEL P. KING, District Judge:
Gloria Price, the owner of a house resting on a contaminated former landfill, appeals from various orders of the district court in her private action for recovery of response costs under CERCLA
In the mid-1930's, the United States Navy dumped paints containing lead, copper and zinc, used asbestos gaskets and insulation on a junkyard in Paradise Hills in San Diego, California. The junkyard included what are now 6021, 6025, 6035 and 6045 Edgewater Street, four contiguous properties. The property at 6025 Edgewater was purchased in 1958 by Harry Moses, who built a house on it in 1960. Price eventually came to own the residence at 6025 Edgewater Street.
In November 1988, Price expended $30,153.56 to remove the large piles of contaminated soil that had been deposited in her yard and her neighbor's yard by Sylvan during the pool excavation. This action was necessitated by an official notice requiring Price to remove the contaminated material.
On July 5, 1989, the State of California, Department of Health Services, Toxic Substances Control Division, determined that the former junkyard site presented an imminent and substantial endangerment to the public health, welfare and the environment. The State based its determination on the fact that the presence of metals, including lead, zinc and copper, and asbestos in the surface soils at the site (6021, 6025, 6035 and 6045 Edgewater) demonstrated that there had been a release of hazardous substances; and that immediate action was necessary to prevent ingestion of contaminants by children, residents and visitors to the site. According to state officials, the contaminants did not present a threat to ground water, surface water or air.
From December 1989 to January 1990, the State undertook a cleanup of the four yards. The State hired International Technologies Corporation ("ITC") to perform the cleanup. ITC's removal and remedial action included excavation down to three feet of the entire back yards and replacement with clean fill. Concrete was placed along the side yards. In addition, ITC placed new sod in the front and back yards and decorative slabs and a new fence in the back yard of 6025 Edgewater. ITC did not dig under the driveway or home at 6025 Edgewater.
After the cleanup was completed, ITC collected soil samples. A total of six borings were made, some to a depth of approximately 17 feet below ground level at the site. The samples revealed that no contamination remained in any areas of the site. This included a boring taken from beneath the foundation at 6021 Edgewater. No boring or sample was taken from beneath the foundation at 6025 Edgewater.
The instant lawsuit was filed in October of 1989. In her first amended complaint, Price asserted claims against the Navy, the Moses family (former owners of the property) and Sylvan Pools.
The case was originally assigned to the Honorable Earl B. Gilliam. On October 2, 1992, Judge Gilliam held that the defendants were responsible parties under CERCLA, entitling Price to recover her cleanup costs, while reserving for trial "The amounts or questions of reducing or disallowing private plaintiff total recovery as a result of contribution issues and payments from other sources." The court also held that Price was entitled to recover attorneys' fees.
On October 21, 1992, the district court held that private "response costs" under CERCLA do not include the cost of medical monitoring to detect the onset of any latent disease caused by exposure to hazardous waste. The court based its decision on the reasoning of Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir.1992), which the court found to be persuasive.
On October 22, 1992, the United States brought a motion for judgment on partial findings pursuant to Rule 52(c) of the Federal Rules of Civil Procedure seeking dismissal of Price's RCRA count. The court verbally granted the government's motion and Price moved for reconsideration. On November 13, 1992, the court entered a written order setting forth its basis for granting the government's motion to dismiss. The court held, after considering the testimony and evidence presented at trial, that Price had failed to meet her burden that an "imminent and substantial endangerment" to health or environment presently exists, and accordingly dismissed Price's RCRA claim against the Navy.
On November 30, 1992, the district court reversed the earlier ruling on attorneys' fees pursuant to the government's motion for reconsideration, holding that Price was not entitled to recover such fees.
Finally, on December 4, 1992, the district court addressed Price's remaining CERCLA claims. The court found the Navy ninety-five percent liable and Moses one percent liable for Price's "response costs."
1. Failure to Sign Notice of Appeal
The first issue we must address is Price's failure to sign her Notice of Appeal. The original notice filed in this case indicates that Price was appealing in propria persona,
In McKinney v. De Bord, 507 F.2d 501 (9th Cir.1974), a state prisoner brought a § 1983 action for himself, his mother and another prisoner. His claims were denied by the trial court. The notice of appeal was signed only by the prisoner, although it purported to be on behalf of all plaintiffs. The
Likewise, the court in Carter v. Commissioner of Internal Revenue, 784 F.2d 1006 (9th Cir.1986) dismissed the appeal of a pro se party who failed to sign the joint notice of appeal. The notice was signed only by her husband. The Court reasoned that:
Id. at 1008 (quoting Covington v. Allsbrook, 636 F.2d 63, 64 (4th Cir.1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1990, 68 L.Ed.2d 305 (1981)) (emphasis in original).
Price argues that the reasoning of Carter does not apply to her case. It is clear from the notice of appeal and other papers that she is the only appellant in this case. Thus, there is no confusion and no prejudice to the Navy. In addition, Price cites Rule 11, which states that "An unsigned paper [shall be stricken unless] omission of the signature is corrected promptly after being called to the attention of the attorney or party." Fed. R.Civ.P. Rule 11. Price has resubmitted her Notice of Appeal with her personal signature affixed thereto, and asks this Court to consider this issue moot.
We agree with Price that dismissal of her appeal is not warranted. The Navy has not claimed any confusion because of Price's failure to sign the Notice of Appeal. Price immediately corrected the omission and is permitted to proceed with the appeal.
2. CERCLA Claims
Medical Monitoring Costs
Price argues on appeal that she is entitled to recover medical monitoring costs as a "response" cost under 42 U.S.C. § 9607(a)(4)(B). The district court rejected this claim based on the reasoning of Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir.1992). Daigle is the first Court of Appeals case to address the issue of whether medical monitoring costs are recoverable by private plaintiffs as a necessary "response" under CERCLA.
Daigle began its analysis with the statute itself. CERCLA was enacted to facilitate the cleanup of environmental contamination caused by hazardous waste releases. Id. at 1533. See also, 3550 Stevens Creek Assoc. v. Barclays Bank of California, 915 F.2d 1355, 1357 (9th Cir.1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). CERCLA employs several mechanisms to further this purpose. One of those mechanisms is a private action for recovery of response costs. The statute provides that certain responsible parties may be sued for:
42 U.S.C. § 9607(a)(4) (emphasis added). The issue, then, is whether the plaintiffs' claim for medical monitoring costs falls within subsection (B)'s private right of recovery for "any other necessary costs of response." 972 F.2d at 1533 (emphasis added). Unfortunately CERCLA does not define the phrase "any other necessary costs of response," although it does define the term "response" as "removal" or "remedial action." 42 U.S.C.
42 U.S.C. § 9601(23) (emphasis added).
42 U.S.C. § 9601(24) (emphasis added). As these definitions indicate, removal actions are designed to effect an interim solution to a contamination problem, while remedial actions are designed to effect a permanent solution. Daigle, 972 F.2d at 1533-34.
The plaintiffs in Daigle argued that the definitions' use of the term "monitoring" in the "public health and welfare" context indicates that their claims are covered. The court rejected this argument, stating that plaintiffs, and the cases they had cited to support their argument, went "awry in affording a broad sweep to the `public health and welfare' language in the definitions." Id. at 1535.
In examining the language of the definitions, the Daigle court observed that the context in which the "monitoring" and "health and welfare" language appears is directed at containing and cleaning up hazardous substance releases. The "monitoring" allowed for under "removal" relates only to an evaluation of the extent of a "release or threat of release of hazardous substances." 42 U.S.C. § 9601(23). And the "remedial action" definition expressly focuses only on actions necessary to "prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare." 42 U.S.C. § 9601(23).
The Daigle plaintiffs further argued that the phrase in § 9601(23) (definition of "removal") referring to "other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare" should be read broadly to cover any type of monitoring that would mitigate health problems. Daigle, 972 F.2d at 1535. The court rejected this argument as well, stating that the general provision for prevention or mitigation of "damage to the public health or welfare" must be interpreted consistently with the specific examples of "removal costs" enumerated in the definition. Id. The specific
The Daigle court then noted that its construction of the definition of "response" is supported by legislative history.
The court finally noted that CERCLA provides elsewhere an elaborate scheme to assess health effects of threatened hazardous substance releases. Id. at 1536 (citing § 9604(i), relating to the Agency for Toxic Substances and Disease Registry ("ATSDR"), which is authorized to conduct health assessments, and, if necessary, further pilot studies and a continuous program of medical monitoring in appropriate cases). Congress provided for the funding of ATSDR studies separate from the payment of response costs. Id. at 1537. Therefore, the Daigle court refused to allow plaintiffs' claim for medical monitoring costs.
We agree with the reasoning of the Daigle court and likewise hold that medical monitoring costs are not response costs under CERCLA. Price's claim for medical monitoring costs, which she supports with the same arguments advanced by the plaintiffs in Daigle, is therefore rejected.
Price next challenges the district court's ruling that CERCLA does not provide for recovery of attorneys' fees by private parties. This issue must be remanded to the district court for reconsideration in light of the recent United States Supreme Court case Key Tronic Corp. v. United States, ___ U.S. ___, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994).
In Key Tronic, a private party brought suit against the Air Force and other responsible parties to recover its cleanup costs which included attorney's fees for legal services provided in connection with (1) the identification of other potentially responsible parties ("PRP's"), (2) the preparation and negotiation of a settlement agreement with the EPA, and (3) the prosecution of the litigation. The issue the Court had to decide was whether the "enforcement activities" included in 42 U.S.C. § 9601(25)'s definition of "response" encompass a private party's action to recover cleanup costs from other PRP's such that the attorneys' fees associated with that action are then "necessary costs of response" within § 107(a)(4)(B). Id. at ___, 114 S.Ct. at 1965-66. The Court held that attorneys' fees associated with category (1) may be recoverable while those in categories
The Court refused to allow recovery of attorneys' fees for private parties who seek to recover cleanup costs because recovery of such fees is not expressly provided for in CERCLA, while Congress has included two express provisions in other circumstances, and "it would stretch the plain terms of the phrase `enforcement activities' too far to construe it as encompassing the kind of private cost recovery action at issue in this case." ___ U.S. at ___, 114 S.Ct. at ___. Recovery for identification of PRP's is allowed because those activities may involve the services of persons who are nonlawyers, and thus are not incurred in pursuing litigation. Legal services for negotiating settlement with the EPA are not recoverable because such work primarily protects the private party's interests as a defendant in the proceedings that established the extent of its liability. As such, they are not "necessary costs of response." Id. at ___, 114 S.Ct. at 1968.
In the instant case, Price presented evidence of attorney's fees to the district court pursuant to the court's original order which held that Price was entitled to recover such fees. The district court later held that Price could not recover any attorney's fees and thus it did not break down the fees according to the categories used by the Supreme Court in Key Tronic. The case must therefore be remanded to the district court.
Joint and Several Liability
Price also contends that the district court erred when it limited the liability of the Navy to 95% and Moses to 1% because "liability is joint and several under CERCLA." This contention can be quickly disposed of because the very cases cited by Price refute her argument. For example, United States v. Monsanto Co., 858 F.2d 160, 173 (4th Cir.1988), cert. denied sub nom Monsanto Co. v. United States, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989), states that "While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of indivisible harm." (Emphasis added.) State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 n. 13 (2d Cir.1985), recognized that the legislative history of CERCLA specifically indicates that the question of joint and several liability was to be left to the courts to be addressed in light of the common law. Note also that Price does not argue that the apportionment of fault made by the district court was erroneous. Therefore, this argument is rejected.
3. RCRA Claim
Lastly, Price argues that the district court erroneously dismissed her RCRA claim for injunctive relief against the Navy.
The problem, Price asserts, is that her house has structural problems. The house was apparently built on several feet of uncompacted junkyard fill. As a result, the concrete slab on which the house was built is cracking. Price claims that in order to remedy this problem, she will need to remove the present floor slab and underlying soil, replace the soil with properly compacted fill, and then pour a new concrete floor slab. These actions "will set in motion a chain of events which could cause migration of the contaminants into the environment and ingestion or inhalation of the contaminants, resulting in serious harm." Though Price may have a legitimate concern about the soil under her home, she failed to produce sufficient evidence to support her RCRA claim, and we therefore affirm the district court's dismissal of her claim.
The citizen suit provision of RCRA, 42 U.S.C. § 6972(a)(1)(B), provides in pertinent part:
Id. (Emphasis added.) When Congress enacted RCRA in 1976, it sought to close "the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes." H.R.Rep No. 1491, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.C.C.A.N. 6238, 6241. RCRA's waste management requirements for disposal facilities are designed not only to prevent, but also to mitigate, endangerments to public health and the environment. See id.
A finding of "imminency" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present: "An `imminent hazard' may be declared at any point in a chain of events which may ultimately result in harm to the public." Environmental Defense Fund, Inc. v. Environmental Protection Agency, 465 F.2d 528, 535 (D.C.Cir.1972) (quoting EPA Statement of Reasons Underlying the Registration Decisions). Imminence refers "to the nature of the threat rather than identification of the time when the endangerment initially arose." United States v. Price, 688 F.2d 204, 213 (3d Cir.1982) (quoting H.R.Committee Print No. 96-IFC 31, 96th Cong., 1st Sess. at 32 (1979)).
Moreover, a finding that an activity may present an imminent and substantial harm does not require actual harm. United States v. Waste Industries, Inc., 734 F.2d 159 (4th Cir.1984). Courts have also consistently held that "endangerment" means a threatened or potential harm and does not require proof of actual harm. United States v. Ottati & Goss, Inc., 630 F.Supp. 1361, 1394 (D.N.H.1985); United States v. Vertac Chemical Corp. 489 F.Supp. 870, 885 (E.D.Ark.1980). See also Ethyl Corp. v. EPA, 541 F.2d 1, 13 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976) ("[c]ase law and dictionary definition agree that endanger means something less than actual harm"). However, at the very least, endangerment or a threat must be shown.
In the present case, the district court, ruling upon the Navy's motion for judgment on partial findings pursuant to FRCP Rule 52(c), concluded that there is no imminent or substantial endangerment entitling Price to an injunction. The RCRA provision implies that there must be a threat which is present now, although the impact of the threat may not be felt until later. Also, endangerment must be substantial or serious, and there must be some necessity for the action. Price failed to make the requisite showings.
The court discussed the testimony and evidence presented at the trial. That discussion is reproduced here at length:
Price claims the district court, as a matter of law, misapplied RCRA when it dismissed her claim on the ground that there is presently no threat. Price apparently is arguing that the threat will arise when she attempts to repair the foundation of her house. Price's argument hinges on two findings of fact of the district court: (1) that there are no hazardous contaminants under the house, and (2) that a repair of the foundation will not cause a release.
As the district court noted, Price failed to show that there is a hazardous level of contamination under her foundation. No testing of the soil directly under Price's house was done. In addition, testing of the soil found in the cracks of the foundation tested negative for contaminants. Thus, we cannot say that it was clear error for the district court to find that the soil under Price's house is probably like the soil under the 6021 Edgewater house, which did not contain significant hazardous contaminants.
Price also failed to show that she needed to remove the concrete slab in order to prevent further harm to her house and foundation. Price has not pointed to any evidence which contradicts the testimony of Mr. Vitale who stated that the cracks in the concrete slab could be repaired without disturbing the foundation and underlying soil. We therefore affirm the district court's dismissal of Price's RCRA claim.
We affirm the district court except with respect to attorney's fees. In light of the United States Supreme Court's decision in Key Tronic Corp. v. United States, ___ U.S. ___, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994), the district court must reconsider the issue of whether any of the attorney's fees sought by Price were for services provided in connection with the identification of other potentially responsible parties.
42 U.S.C. § 9601(25).