EMERGENCY SERVICES BILLING CORPORATION v. VITRAN EXPRESS, INC. et al
ENTRY denying Plantiff's 44 Motion for Summary Judgment (see Entry). Signed by Judge Richard L. Young on 1/9/2013. (PG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EMERGENCY SERVICES BILLING
VITRAN EXPRESS, INC. and MIKE
ENTRY ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Emergency Services Billing Corporation (“ESBC”), moves for summary
judgment against the defendants, Vitran Express, Inc. (“Vitran Express”) and Mike
Brown (“Brown”) (collectively “Defendants”), seeking costs and attorney’s fees
associated with cleaning up a hazardous waste spill under the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §
9601 et seq. For the reasons set forth below, ESBC’s Motion is DENIED.
On July 30, 2008, Brown was operating a tractor-trailer, owned by Vitran, to
deliver a load of textbooks to Delta High School. (Declaration of Tim Baty ¶ 6). While
the tractor-trailer was on school property, someone noticed that it was leaking a
potentially hazardous substance and called 911. (Id.). Brown confirmed through his
paperwork that the substance was UN 1903 Guide 153. (Id. ¶¶ 9, 11). The Emergency
Response Guidebook (“Guidebook”) identifies UN 1903 as a “toxic” substance and
warns, among other things, to stay upwind of leaks, and that contact with water presents
explosion hazards. (Id. ¶ 11). The Guidebook states that leaks of this substance should
be isolated in all directions for at least one hundred fifty (150) feet. (Id.).
The Hamilton Township Volunteer Fire Department (“Hamilton Township”) was
dispatched to the scene, led by Chief Tim Baty (“Chief Baty”). (Id. ¶¶ 3, 8). Chief Baty
ordered the firefighters under his command to dyke and contain the spill, and he
established a Hot Zone. (Id. ¶¶ 10, 13). In addition to Hamilton Township’s efforts, the
Madison County Hazmat team, the Delaware County Emergency Management Agency,
the Delaware County Police, and the Indiana Department of Environmental M anagement,
were also dispatched to the spill. (Id. ¶¶ 17, 19, 21, 30).
On August 5, 2008, ESBC, as the billing agent of Hamilton Township, prepared
and sent an invoice to Defendants setting forth the clean-up costs that were incurred by
Hamilton Township in responding to the spill, which totaled $8,495.99. (Id. ¶ 33, 34;
Declaration of Allen Keen ¶ 7). To date, the invoice has not been paid.
On March 3, 2011, Hamilton Township assigned its claim to ESBC. (Id. ¶ 10).
One month later, ESBC filed the present action against the Defendants seeking the costs it
incurred in responding to the spill ($8,495.99) and its litigation-related attorney’s fees.
Summary Judgment Standard
Summary judgment is appropriate if the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56(a). The material facts in this case are undisputed, and the issue in
dispute (discussed immediately below) is one of law. Therefore, summary judgment is
particularly appropriate. Brown v. Medtronic, Inc., 852 F.Supp. 717, 718 (S.D. Ind. 1994)
In their Response, Defendants concede liability for the July 30, 2008, spill.
Although Defendants object to certain line items on the $8,495.99 invoice sent by ESBC,
the issue in the present motion is whether ESBC is entitled to its attorney’s fees under
The statutory section at issue reads:
[In the event of a] release, or a threatened release which causes the
incurrence of response costs, or a hazardous substance, [the responsible
party shall be liable for]:
(A) all costs of removal or remedial action incurred by the United States
Government or a State . . . not inconsistent with the national contingency
(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan.
42 U.S.C. § 9607(a)(4)(A) & (B). Although attorney’s fees are not specifically
mentioned in this statute, courts have held that, as part of its recovery of response costs,
the government may seek reimbursement for attorney’s fees under Section 9607(a)(4)(A).
United States v. Hardage, 982 F.2d 1436, 1441 (10th Cir. 1992); Reardon v. United
States, 947 F.2d 1509, 1514 (1st Cir. 1991); United States v. Domenic Lombardi Realty,
Inc., 334 F.Supp.2d 105, 106 (D.R.I. 2004). Conversely, private parties may not seek
reimbursement for attorney’s fees incurred for purposes of litigation, because they are not
a “necessary cost of response” under Section 9607(a)(4)(B). Key Tronic Corp. v United
States, 511 U.S. 809 (1994); AM Int’l v. Datacard Corp., 106 F.3d 1342, 1348-49 (7th
Cir. 1997). Thus, whether ESBC, as assignee of Hamilton Township, may recover its
attorney’s fees turns on whether Hamilton Township should be considered a “State”or the
“United States Government” under Section 9607(a)(4)(A).
CERCLA defines “State” for purposes of Section 9607(a)(4)(A) as “the several
States of the United States, the District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the
Northern Marianas, and any other territory or possession over which the United States has
jurisdiction.” 42 U.S.C. § 9601(27). The term “State” is not limited to the state itself; it
also includes any agency, department, or instrumentality of a state. Washington State
Dep’t of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 796 (9th Cir. 1995).
Relying upon the dissenting opinion in a century-old United States Supreme Court
opinion, ESBC argues that fire departments, like Hamilton Township, play a unique role
within the operation of state government, and should therefore be considered an
instrumentality of the state. Workman v. City of New York, 179 U.S. 552, 585 (1900)
(noting that fire protection “is a public and governmental duty, which rests upon the
government of the state” and thus is for the benefit of the public). ESBC’s reliance on the
dissenting opinion in Workman is problematic, not only because it carries no precedential
value, but also because the majority opinion actually runs counter to ESBC’s argument:
[I]t unquestionably appears that the fire department of the city of New York
was an integral branch of the local administration and government of that
city. The ministerial officers who directed the affairs of the department
were selected and paid by the city; all the expenses of the department of
every kind and nature were to be borne by the city, which was bound by all
contracts made for such purpose; all the property of the department,
including the fire-boats, belonged to the city; and the city was liable in case
of an authorized destruction on land of property of individuals to prevent
the spread of a conflagration.
Id. at 564-65 (emphasis added).
Next, ESBC relies on an Indiana Supreme Court opinion entitled Ayres v. Indian
Heights Vol. Fire Dep’t, Inc. for the proposition that fire departments are
instrumentalities of the state. 493 N.E.2d 1229 (Ind. 1986). In Ayres, the Indiana
Supreme Court held that the Indian Heights Volunteer Fire Department was immune from
suit under the Indiana Tort Claims Act for its alleged negligence in fighting a fire that
destroyed the plaintiffs’ garage and its contents. Id. at 1230, 1237. The Court reasoned
that firefighting is “uniquely governmental”; thus, “[w]hen private individuals or groups
are endowed by the state with powers or functions governmental in nature, they become
agencies or instrumentalities of the state and are subject to the laws and statutes affecting
governmental agencies and corporations.” Id. at 1235. The Court then analyzed Title 36,
Article 11, Chapters 11, 12, and 13 of the Indiana Code, which authorizes, inter alia,
townships to provide fire protection for the citizens living within the township, including
the creation of volunteer fire departments, and the methods by which volunteer fire
departments are organized and created. Id. The Ayres Court concluded that “[i]t is clearly
the intention of the Legislature to recognize volunteer fire departments as
instrumentalities of local government . . . .” Id. at 1237 (emphasis added). The Indian
Heights Volunteer Fire Department “was therefore an instrumentality of local government
and was protected by the Indiana Tort Claims Act.” Id.
Contrary to ESBC’s position, Hamilton Township, like the Indian Heights
Volunteer Fire Department in Ayres, is an instrumentality of local government, not state
government. Ergo, ESBC, as assignee of Hamilton Township, is not a “State” within the
meaning of Section 9607(a)(4)(A).
United States Government
ESBC argues, in the alternative, that Hamilton Township should be considered the
United States Government under Section 9607(a)(4)(A). ESBC’s argument is premised
on the following: (1) Congress expressly granted the President authority to handle the
removal of hazardous materials and pollutants that pose an environmental threat, 42
U.S.C. § 9604(a)(1)(B); (2) the President delegated his authority over the execution of
emergency removal actions to the Environmental Protection Agency (“EPA”), APWU v.
Potter, 343 F.3d 619, 626 (2d Cir. 2003) (citing Exec. Order No. 12580, 52 Fed. Reg.
2923 (1987)); (3) the EPA delegated its authority to local emergency responders to
conduct emergency removal actions; and (4) Hamilton Township first responded to the
chemical spill as the “lead agency” per 40 C.F.R. § 300.415(a)(4)(A). According to the
implementing regulations, a “lead agency” may “take any appropriate removal action to
abate, prevent, minimize, or eliminate the release or threat of release.” Id.
The implementing regulations define “lead agency” as a state or political
subdivision “operating pursuant to contract or cooperative agreement executed pursuant
to section 104(d)(1) of CERCLA, or designated pursuant to a Superfund Memorandum of
Agreement. . . .” 40 C.F.R. § 300.5. ESBC was not operating under a contract or
cooperative agreement executed pursuant to section 104(d)(1) of CERCLA; it simply
responded to a 911 call. Hamilton Township, therefore, was not the “lead agency” as that
term is defined by the implementing regulations.
ESBC also relies on 40 C.F.R. § 311.1, which provides that state and local
government employees engaged in “hazardous waste operations” must adhere to OSHA
regulations found at 29 C.F.R. § 1910.120. The substantive provisions of 29 C.F.R. §
1910.120 apply in “States that do not have a State plan approved under section 18 of the
Occupational Safety and Health Act of 1970.” 40 C.F.R. § 311.1. Indiana is one of
twenty-seven (27) states that does have a plan approved under section 18. State
Occupational Safety and Health Plans, OSHA.GOV, http://222.osha.gov/dcsp/osp/
index.html. As a result, 40 C.F.R. § 311.1 is inapplicable to this case. The court
therefore finds that ESBC, as assignee of Hamilton Township, is not the “United States
Government” within the meaning of 42 U.S.C. § 9607(a)(4)(A).
Hamilton Township is neither the “State” nor the “United States Government” for
purposes of 42 U.S.C. § 9607(a)(4)(A). Accordingly, ESBC, as assignee of Hamilton
Township, is entitled to its “necessary costs of response” under 42 U.S.C. §
9607(a)(4)(B). As established by the Supreme Court, ESBC’s “necessary costs of
response” do not include its litigation-related attorney’s fees. Accordingly, ESBC’s
Motion for Summary Judgment (Docket # 44) is DENIED with respect to that issue.
SO ORDERED this 9th day of January 2013.
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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