Finally, although the court in Rosenblatt emphasized that the nature of the Rosenblatt claim was one for lost future profits, it stated that the doctrine of strict liability was "not designed to protect against economic losses resulting from failed business opportunities." Id. However, the plaintiff in Rosenblatt, as does the Plaintiff in this case, sought economic damages, including the costs that resulted from the contamination of the property. Accordingly, the court is not convinced that the fact that Plaintiff only seeks the costs of remediation warrants a different result in this case.
b. Negligence Claim:13
The Corps cannot state a cause of action in negligence unless it shows that the Defendants owed a duty to it to avoid that injury. The question is therefore, whether the Defendants owed a duty to the Corps, an issue of law, to be determined by the court. The Rosenblatt court noted that it had "not heretofore extended the duty of the occupier of land to the avoidance of harm to one's own land that may cause injury or loss to a subsequent occupier of the same land." Rosenblatt, 642 A.2d at 189.
The court stated that "ultimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiff's interests are, or are not, entitled to legal protection against the conduct of the defendant." Id. The court concluded that they were not because there existed no relationship between the parties which would have made it foreseeable that an act or failure to act by Exxon would result in harm to Rosenblatt. Id. Moreover, the court was unwilling to impose upon a lessee of commercial property a duty to remote successor lessees for losses resulting from a condition on the property that could have been discovered with reasonable diligence prior to occupancy and thus could have been avoided. Id. The same analysis is applicable to the circumstances surrounding this case. Therefore, Counts three, four, and seven are dismissed.
c. Trespass Claim
The court in Rosenblatt held that it had never recognized a trespass where the thing which intrudes actually entered the land during the "trespasser's" possession and the plaintiff took possession of the land subsequent to the "intrusion." Id. Section 161 of the Restatement (Second) of Torts explicitly provides that a trespass involves the tortious placing of something on the land and implicitly provides that the affected land is the land of another. Restatement (Second) of Torts § 161 (1965). In the present case, the affected property is not that of another but property that was either leased or owned by the defendants when the alleged trespass occurred. Accordingly, Count two must be dismissed.
E. Count Five Violation of the District of Columbia Underground Storage Tank Management Act of 1990.
Count five of the Complaint alleges that Defendants violated provisions of the Underground Storage Tank Management Act of 1990, D.C. Code Ann. §§ 6-995.1 to -995.11 (1995) (codified as amended) (hereinafter "D.C. UST Act" or "UST Act"), and that the violations entitled the Plaintiff to recover damages for property remediation, increased interest and taxes, loss of rental income, and attorneys fees. (Compl. PP 35, 68-76.) Specifically, Plaintiff alleges that each of the Defendants is an "owner" as defined by the UST Act, D.C. Code Ann. § 6-995.1(4) and as owners, they failed to both notify the Mayor of the existence of their underground storage tanks, pursuant to D.C. Code Ann. § 6-995.2, and to comply with release notification requirements, pursuant to D.C. Code Ann. § 6-995.3. The question to be resolved is whether or not the D.C. UST Act's citizen suit provision allows private individuals to sue for money damages.
The District of Columbia Underground Storage Tank Act
is one step in a multi-level process the District of Columbia is engaging in to obtain EPA approval to operate its own UST program
in lieu of the current federal program. In 1984, the United States Congress passed the Hazardous and Solid Waste Amendments Act, Pub. L. No. 98-616, 98 Stat. 3277 (1984) (codified at 42 U.S.C. §§ 6991-6991i (1988 & Supp. V 1993)), adding Subchapter IX Regulation of Underground Storage Tanks to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6992k (1988 & Supp. V 1993) (hereinafter "RCRA"). Under RCRA, the states can develop their own petroleum UST programs and seek approval from the United States Environmental Protection Agency (hereinafter "EPA") to exercise primary responsibility in regulating USTs within their borders. 42 U.S.C. §§ 6991b(h)(7)-6991c (1988). A state program receives approval only if its regulatory regime is "no less stringent than the corresponding requirements" of RCRA and its effectuating regulations. 42 U.S.C. § 6991c(d)(2); 40 C.F.R. § 281.30-281.38 (1994). Once a state obtains approval, the state plan will govern in lieu of the federal program. If the state program has not obtained full EPA approval, RCRA continues to apply in addition to any independent state or local regulations.
Like RCRA, the D.C. UST Act provides a means of redress for private citizens aggrieved by violations of the Act. See 42 U.S.C. § 6972 (1988) (RCRA citizen suit provision); D.C. Code Ann. § 6-995.11 (UST Act citizen suit provision). Plaintiff maintains that D.C. Code § 6-995.11 allows private citizens to sue for money damages and that it is thus entitled to $ 1,100,000.09 in such damages.
The issue of whether a statute expressly or impliedly provides for a particular cause of action involves matters of statutory construction, legislative history, and legislative policy. As such, this issue is a strictly legal one for the court to decide. Whether the D.C. UST Act provides an express or implied cause of action for money damages is an issue of first impression; neither the United States Court of Appeals for the Circuit of Columbia nor the District of Columbia Court of Appeals has had an opportunity to consider the issue as presently framed.
The D.C. UST Act provides that "any person aggrieved by a violation of any requirement of this subchapter or rule issued pursuant to this subchapter may commence a civil action... against any person who is alleged to be in violation." D.C. Code Ann. § 6-995.11(a). Under this section of the statute, the court has jurisdiction to enforce any of the UST Act's requirements and to "order any action necessary to correct the violation, and to impose any civil penalty provided for the violation." D.C. Code Ann. § 6-995.11(b). Read in the context of the UST Act, the language suggests to this court that it has the power to enforce the UST Act's provisions, restrain responsible parties from causing further harm, and to order such parties to clean up petroleum UST releases so as to "correct the violation." It is not readily apparent to the court that it can award money damages to subsequent real property owners who have "corrected the violation" by cleaning up a petroleum release. The language is, however, ambiguous, failing to expressly provide for a private cause of action for money damages.
Absent express authorization, the court must look to see if the statute creates an implied right of action. Like the federal courts, the District of Columbia courts apply the test delineated by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975) to determine the existence of statutorily implied causes of action. See Kelly v. Parents United, 641 A.2d 159, 163-65 (D.C. 1994) (applying the Cort test to District of Columbia Public School Nurse Act, D.C. Code § 31-2421 (1993)); see also Twyman v. Johnson, 655 A.2d 850, 856-57 (D.C. 1995) (citing Cort and Kelly in its implied private cause of action analysis). Specifically, the court must determine:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted...? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
Kelly, 641 A.2d at 164 (citing Cort, 422 U.S. at 78) (emphasis in original).
The Supreme Court has held that the single most important Cort factor is legislative intent, explicit or implicit. Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 1370, 118 L. Ed. 2d 1 (1992) ("The most important inquiry here... is whether Congress intended to create the private remedy sought by the plaintiffs.").
The D.C. Court of Appeals has also adopted this view. See Kelly, 641 at 164 ("Legislative intent.... has become the most important factor of the Cort inquiry."). As such, the court will examine this factor first.
The UST Act's scant legislative history does not clarify the terminology used in the statute. In the Council of the District of Columbia's Committee on Public Work's report on the UST Act, the single sentence regarding citizen suits states that the citizen suit section "establishes that any citizen may seek relief in a court of competent jurisdiction for any hardship suffered as a result of any person's failure to comply with the provisions of this Act." Council of the District of Columbia's Comm. on Public Works, Report on Bill 8-383, District of Columbia Underground Storage Tank Management Act of 1990, at 7 (November 19, 1990) (hereinafter "Report on Bill 8-383"). The type of relief available is not specified. However, there is statutory language that limits the court's ability to grant relief to the ordering of "any action necessary to correct the violation" and the imposition of civil penalties. D.C. Code Ann. § 6-995.11. Based on the sparse legislative history available, the court is unable to conclude that the Council intended that the D.C. UST Act's citizen suit provision serve as a basis for private individuals' suits for money damages.
The court's inquiry, however, is not at an end. While the Council could create a UST program that was more stringent than RCRA, there is absolutely no indication that the Council intended do so. To the contrary, it appears than the Council intended that the D.C. UST Act would serve only to meet the requirements of RCRA. As stated by the Committee on Public Works, the purpose and effect of the D.C. UST Act is to "provide the Mayor with adequate statutory authority to develop and implement a comprehensive regulatory program... capable of meeting rigorous federal standards...." Report on Bill 8-383, at 4. The court reads this section to encompass the citizen suit provision.
Broken down into its essential elements, the D.C. UST Act's citizen suit provision allows the courts to:
(1) "enforce the [statute's] requirement[s]..."
(2) "order any action necessary to correct the violation [of the statute, regulations, etc.] ... [and]
(3) "impose any civil penalty provided for the violation." In comparison, RCRA's citizen suit provisions, codified at 42 U.S.C. § 6972 (1988), give the district court jurisdiction to:
(1) "enforce the permit, standard, regulation, condition, requirement, prohibition, or order..."
(2) "restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste..."
(3) "order such person to take such other action as may be necessary, or both... and"
(4) "apply any appropriate civil penalties under section 6928(a) and (g) of this title."
In comparing the two provisions, except for the absence of statutory language in the D.C. UST Act regarding a court's ability to restrain certain persons, the language is essentially the same.
Unlike the absence of case law on the D.C. UST Act's citizen suit provision, there is a substantial amount of law on RCRA's citizen suit provisions. Courts confronting this issue have almost unanimously concluded that RCRA's citizen suit provisions, 42 U.S.C. § 6972(a)(1)(A) and (a)(1)(B), allow for abatement and injunctive measures, but not for money damages.
The RCRA citizen suit provisions are an enforcement mechanism by which citizens can act as "private attorney generals" to ensure compliance. See supra note 20. Congress has placed such private attorney general provisions in most modern environmental statutes
so that private citizens are able to play a role in protecting the environment along with federal and state agencies. While the citizen suit provisions are not models of clarity, the courts, including the United States Supreme Court, have consistently held that the federal environmental statutes generally do not grant private citizens the right to collect money damages.
Thus while civil penalties payable to the federal government are a significant part of the enforcement strategy, monetary damages payable to private plaintiffs are not. See Austin, supra note 22, at 230, 237-38. These citizen suit provisions do not offer any "private rewards," because as private attorney generals, citizen-plaintiffs are supposed to be guided by the public benefits. See Middlesex, 453 U.S. 1, 15-18 & n.27,
, 69 L. Ed. 2d 435, 101 S. Ct. 2615.
The House Committee explicitly stated that the RCRA citizen suit provisions confer "on citizens a limited right...to abate
an imminent and substantial endangerment." Id. When Congress has wanted to provided for the recovery of remediation costs, it has explicitly done so. See 42 U.S.C. § 6991b (Supp. V 1993) (delineating explicitly when government may seek recovery of cost for remediating petroleum contaminated property in emergency situations under RCRA); 42 U.S.C. § 9607(a)(4)(A), (a)(4)(B) (1988 & Supp. V 1993) (stating when government and individuals can seek recovery of response costs under CERCLA).
The next prong of the Cort test requires the court to determine if the Plaintiff is a member of a class for whose especial benefit the statute was enacted. See Cort 422 U.S. at 78. In reviewing the legislative history of the D.C. UST Act, the court can find no indication that the statute was created for the especial benefit of individuals like the plaintiff, but many indications that the D.C. UST Act was enacted to protect the public's health. The legislation was a result of the Council's "ongoing commitment to a safe and healthy living environment." Report on Bill 8-382, at 3. The legislation was drafted after the Council's Committee on Public Works monitored and evaluated the District of Columbia's "efforts to protect the public health, safety, and welfare from real and potential ecological threats posed by leaking underground storage tanks." Id. In enacting the D.C. UST Act, the Council was seeking to obtain authorization to implement its own UST program in lieu of RCRA. Id. at 3. Its understanding was that the RCRA UST provisions were enacted to stop "a major source of soil and groundwater contamination." Id. at 1. Preventing water contamination was the most important reason because "one-half of the U.S. population depends primarily on groundwater as a source of drinking water." Id. at 2.
Absent any indication to the contrary, the court concludes that the D.C. UST Act's citizen suit provision is not broader than RCRA's citizen suit provisions and that the UST Act was not enacted for the especial benefit of a class of which the plaintiff is a member. Implying such a cause of action would not be consistent with the underlying enforcement scheme of allowing citizens to act as private attorney generals. Thus, the third prong of the Cort test is not met either.
Accordingly, the court holds that private individuals can utilize the D.C. UST's citizen suit provision to sue responsible parties to compel compliance with the UST Act and to abate any effects of petroleum UST releases, but not to collect money damages.
F. Count Six Negligence Per Se for violation of the D.C. UST Act
In Count six of the Complaint, Plaintiff alleges that Defendants' violations of the D.C. UST Act constitute negligence per se. This is an issue of first impression in this jurisdiction, as neither the federal courts nor the District of Columbia courts have confronted the issue of whether the negligence per se doctrine is applicable to the D.C. UST Act. The "general rule" in the District of Columbia is that:
where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law.
Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C. 1982) (citing Richardson v. Gregory, 108 U.S. App. D.C. 263, 281 F.2d 626, 629 (D.C. Cir. 1960))
This is essentially a summarization of §§ 286 and 288 of the Restatement (Second) of Torts, which specify when a standard of conduct defined by statute or regulation will be adopted by the courts. Restatement (Second) of Torts §§ 286, 288 (1965); see Thoma, 632 A.2d 725, 727 (citing the Restatement). Section 286 states:
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part