Apr 082013
 

Lawsuit Filed in U.S. Court

 

COX & MOYER

Scott J. Allen (State Bar #178925)

703 Market Street, Suite 1800

San Francisco, CA  94103

Tel:  (415) 543-9464  (415) 543-9464

Fax: (415) 777-1828

 

Attorneys for Plaintiffs

 

 

United States District Court for the

 

Northern District of California, San Jose Division

 

 

 

ARC ECOLOGY, FILIPINO/AMERICAN COALITION FOR ENVIRONMENTAL SOLUTIONS, NORMA DUERO, NOEL DUERO, MARITESS D. DUERO, VICTORIA N. MANIAGO, MARITESS BALINTAG, ELSA E. GONZAGA, MELODY O=BRIEN, CONNIE R. DOMDOM, ROSALINA GERONIMO, ALMA G. BALAWAN, ROSALINDA I. PERAAN, ZENAIDA A. RILEY, MARISSA C. NAVIDAD, DOLORES C. MOSE, ADRIANO B. LAZARTE, LOLITA SAYAT, FRANCISCA SMITH, EDYA P. WARNER, JENNIFER G. LANSANGAN, ANGELICA WARNER, CRISPIN DIALA, CHRISTINA MUNOZ, FERNANDO FERRER, HILARIA FERRER, EMILIO FERRER, RIA RICHELLE LIMID, GILBERT PINEDA, FELIPE ESPINOSA, JR., RAMIL ESPINOSA, MARIO MANIALUNG, BETTY B. VALENCIA, ANGELINA M. LIWANAG, MARY ANN V. DIEGO, ERNESTO S. BORJA, OFELIA M. DIZON, NERMINDA B. SAGUM

 

Plaintiffs,

v.

 

UNITED STATES DEPARTMENT OF THE AIR FORCE, UNITED STATES DEPARTMENT OF THE NAVY, UNITED STATED DEPARTMENT OF DEFENSE, AND DONALD RUMSFELD, in his official capacity as United States Secretary of Defense.

 

Defendant.

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No:

 

COMPLAINT

 

 

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NATURE OF THE CASE

1.  Plaintiffs bring this case pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (ACERCLA@), 42 U.S.C. ‘ 9601 et seq., seeking an order compelling the Defendants to conduct preliminary assessments of the severe environmental contamination at the properties of two former United States military bases in the Philippines, Clark Air Force Base (AClark@) and the Subic Bay Naval Base (ASubic@).  Plaintiffs also seek an order declaring that the provisions of CERCLA apply to those two former United States military bases.

JURISDICTIONAL ALLEGATIONS; VENUE

2.     This Court has jurisdiction over the subject matter of the Plaintiffs= claims herein pursuant to 42 U.S.C. ‘ 9659(a)(1), which authorizes the commencement of a civil action Aagainst any person (including the United States . . .) who is alleged to be in violation of any standard, regulation, . . . or requirement . . . which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities);@ and/or 42 U.S.C. ‘ 9659(c), which states that Athe district court shall have jurisdiction in actions brought under subsection (a)(1) of this section to enforce the standard, regulation, condition, requirement, or order concerned . . ., to order such action as may be necessary to correct the violation, and to impose any civil penalty provided for the violation@;  and/or 42 U.S.C. ‘ 9613(b), which states that Athe United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy.@

3.     Venue is proper in this district pursuant to 42 U.S.C. ‘ 9659(b)(1) and/or 42 U.S.C. ‘ 9613(b).  Section 9613(b) states that A[v]enue shall lie in any district . . . in which the defendant resides, [or] may be found . . ..@  Defendants may be found in this district because, among other reasons, one or more United States military bases under the jurisdiction or control of the Defendants is located in this district, including without limitation Onizuka Air Force Base.

4.     Plaintiffs have satisfied all conditions precedent to the commencement of this action by sending an Amended And Consolidated Notice of Intent to Sue B Clark Air Base and Subic Naval Base, Philippines, dated August 20, 2002 to the President and the Defendants.  Said Notice was sent by certified mail, return receipt requested.

FACTUAL BASIS OF LEGAL CLAIMS

5.     From about the early 1900’s until about 1947, the Philippines was a colony and/or possession of the United States of America.  During that time period, the Defendants began to operate United States military bases on the Clark and Subic properties.

6.     In about 1947, the United States of America and the government of the Philippines entered in to an international agreement referred to as the 1947 Military Bases Agreement (the ABases Agreement@).  The Bases Agreement provided that United States would be allowed to exercise jurisdiction over the Clark and Subic properties for the purpose of operating United States military bases.  From approximately 1947 until about 1992, the Defendants actually operated United States military bases on the Clark and Subic properties pursuant to the provisions of the Bases Agreement.

7.     During the time that the Defendants operated military bases on the Clark and Subic properties as described above, the Defendants caused a variety of hazardous substances and/or pollutants and/or contaminants to be released into the soil, water, and/or air on the Clark and Subic properties and/or the soil, water, and/or air near or in the vicinity of the Clark and Subic properties.  The Defendants release of hazardous substances and/or pollutants or contaminants included without limitation the release of substantial amounts of solvents and other organic contaminants in to the soil and groundwater on a portion of the Clark property that was used as a motor pool and vehicle maintenance center.

8.     Plaintiffs, NORMA DUERO, NOEL DUERO, MARITESS D. DUERO, VICTORIA N. MANIAGO, MARITESS BALINTAG, ELSA E. GONZAGA, MELODY O=BRIEN, CONNIE R. DOMDOM, ROSALINA GERONIMO, ALMA G. BALAWAN, ROSALINDA I. PERAAN, ZENAIDA A. RILEY, MARISSA C. NAVIDAD, DOLORES C. MOSE, ADRIANO B. LAZARTE, LOLITA SAYAT, FRANCISCA SMITH, EDYA P. WARNER, JENNIFER G. LANSANGAN, ANGELICA WARNER, CRISPIN DIALA, CHRISTINA MUNOZ, FERNANDO FERRER, HILARIA FERRER, EMILIO FERRER, RIA RICHELLE LIMID, GILBERT PINEDA, FELIPE ESPINOSA, JR., RAMIL ESPINOSA, MARIO MANIALUNG, BETTY B. VALENCIA, ANGELINA M. LIWANAG, MARY ANN V. DIEGO, ERNESTO S. BORJA, OFELIA M. DIZON, NERMINDA B. SAGUM (the AIndividual Plaintiffs@), are individuals who live and/or travel on or near the Clark and/or Subic properties, and/or have family members that live and/or travel on or near the Clark and/or Subic properties.  The Individual Plaintiffs and/or their family members therefore have been and/or may be exposed to the hazardous substances and/or pollutants or contaminants that were released to the environment on the Clark and Subic properties by the Defendants as described above.

9.     Plaintiffs, ARC ECOLOGY (AArc@) and FILIPINO/AMERICAN COALITION FOR ENVIRONMENTAL SOLUTIONS (AFACES@), are non-profit organizations formed for the purpose of, among other things, forming coalitions with and supporting individuals and community groups in obtaining assessment and cleanup of environmental pollution on former United States military bases in the Philippines.  The Individual Plaintiffs are members of Arc and FACES and/or are members of coalitions with Arc and FACES.

10.    In about June of 2000, the Plaintiffs sent the Defendants a APETITION FOR ENVIRONMENTAL PRELIMINARY ASSESSMENT AND SITE INSPECTION of Clark Air Base, Philippines@ (the AClark Petition@) and a APETITION FOR ENVIRONMENTAL PRELIMINARY ASSESSMENT AND SITE INSPECTION OF SUBIC NAVAL FACILITY, PHILIPPINES@ (the ASubic Petition@).  The Clark Petition and Subic Petition are hereinafter collectively referred to as the APetitions@.  The Petitions demanded that the Defendants perform  preliminary assessments (APAs@) at the Clark and Subic properties pursuant to section 105(d) of CERCLA, 42 U.S.C. ‘ 9605(d) and Section 300.420(b)(5) of the National Contingency Plan (ANCP@), 40 C.F.R. section 300.420(b)(5).

11.    Section 105(d) of CERCLA states, in pertinent part

Any person who is, or may be, affected by a release or threatened release of a hazardous substance or pollutant or contaminant, may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release or threatened release.  If the President has not previously conducted a preliminary assessment of such release, the President shall, within 12 months after the receipt of any such petition, complete such assessment or provide an explanation of why the assessment is not appropriate. . ..

12.    Section 300.420(b)(5) of the NCP likewise states that any person may petition the head of the lead federal agency to perform a PA and that the Alead federal agency shall complete a remedial or removal PA within one year of the date of receipt of a complete petition . . ., if it has not been performed previously, unless the lead federal agency determines that a PA is not appropriate.@

13.    Despite receiving the Petitions, the Defendants have failed and refused to conduct preliminary assessments of the releases of hazardous substances and/or pollutants or contaminants at the Clark or Subic properties.

14.    The Defendants failed to formally respond to the Subic Petition in any way within 12 months of receipt of the Subic Petition; and the Defendants have never, as of the date of this Complaint, provided the Plaintiffs with any explanation as to why a preliminary assessment is not appropriate for the Subic Property.  By failing to conduct a PA at the Subic property and failing to provide the Plaintiffs with an explanation of why a PA is not appropriate for the Subic property, the Defendants have violated, and continue to violate, CERCLA section 105(d) and section 300.420(b)(5) of the NCP.

15.    The Defendants did respond to the Clark Petition by sending the Plaintiffs a letter dated about 21 June 2000.  In that letter, the Defendants stated that they would not conduct a PA of the Clark property because (a) the Defendants contend that CERCLA does not apply to the releases of hazardous substances and/or pollutants or contaminants at Clark because the Clark property is located outside the territorial boundaries of the United States; and (b) the Defendants contend that the Philippine government has relinquished any right to demand environmental restoration of the Clark property by executing a 1988 amendment to the 1947 Bases Agreement.

16.    The Defendants= stated reasons for refusing to conduct a PA of the releases on the Clark property are invalid:

A.     CERCLA expressly applies to the releases of hazardous substances and/or pollutants or contaminants that have occurred on the Clark property, despite the fact that the Clark property is currently located outside the territorial boundaries of the United States.  The term Arelease@ is defined in section 101(22) of CERCLA, 42 U.S.C. ‘ 9601(22), to mean Aany spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment . . .@  (Emphasis added).  The term Aenvironment@ is defined in CERCLA section 101(8), 42 U.S.C.  ‘ 9601(8), to mean Aany . . . water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.@  (Emphasis added).  Finally, although CERCLA does not define the term Aotherwise under the jurisdiction of the United States,@ it does define the term Aunder the jurisdiction of the United States@ to mean Asubject to the jurisdiction of the United States . . . as provided by international agreement to which the United States is a party.@  42 U.S.C. ‘ 9601(19) (emphasis added).  Here, the activities carried out by the Defendants at Clark were conducted as provided by the 1947 Military Bases Agreement, which is a bilateral international agreement to which the United States is a party.  CERCLA therefore expressly governs any Areleases@ that occurred during the time the Defendants had jurisdiction over the Clark property.

B.     Contrary to the Defendants= assertion, the Philippines government never gave up the right to demand restoration of the Clark property by agreeing to a 1988 Amendment to the 1947 Military Bases Agreement.  In 1988, the Philippine government did agree to amend the Bases Agreement by adding Article XVII section 2 (ASection 2″) to the Bases Agreement, but Section 2 does not waive the Philippines right to demand restoration of Clark.  Section 2 is entitled ARemoval of Improvements.@  Section 2 states:

All buildings and structures which are erected by the United States in the bases shall be the property of the United States and may be removed by it before the expiration of this Agreement or the earlier relinquishment of the base on which the structures are situated.  There shall be no obligation on the party of the Philippines or of the United States to rebuild or repair any destruction or damage inflicted from any cause whatsoever on any of the said buildings or structures owned or used by the United States in the bases.  The United States is not obligated to turn over the bases to the Philippines at the expiration of this Agreement or the earlier relinquishment of any bases in the condition in which they were at the time of their occupation, nor is the Philippines obliged to make any compensation to the United States for the improvements made in the bases or for the buildings or structures thereon, all of which shall become the property of the Philippines upon the termination of the Agreement or the earlier relinquishment by the United States of the bases where the structures have been built.  (Emphasis added).

As the highlighted language from Section 2 above demonstrates, Section 2 addresses only Abuildings or structures@ or other Aimprovements@ on the United States bases.  The fact that Section 2 relates exclusively to buildings, structures and/or similar improvements is highlighted by the title of Section 2 B ARemoval of Improvements.@  Section 2 makes no reference whatsoever to the release of hazardous substances and/or pollutants or contaminants on the Clark or Subic properties.  Therefore, Section 2 in no way constitutes a waiver by the Philippines of any right to demand that the United States assess and respond to releases of hazardous substances on the bases.

17.    Accordingly, the Defendants= failure to conduct a PA on the Clark property has violated, and continues to violate, CERCLA section 105(d) and section 300.420(b)(5) of the NCP.  Furthermore, the Defendants= stated reasons for failing to conduct a PA on the Clark property should be declared invalid.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief:

1.     Order the Defendants to conduct preliminary assessments regarding the releases of hazardous substances and/or pollutants or contaminants on the Clark and Subic properties.

2.     Declare that CERCLA section 105(d), 42 U.S.C. ‘ 9605(d) and section 300.420(b)(5) of the NCP, 40 C.F.R. ‘ 300.420(b)(5) govern the release of hazardous substances and/or pollutants or contaminants at the Clark and Subic properties described above.

3.     Order the Defendants to pay the Plaintiffs= costs incurred in bringing this lawsuit, including without limitation attorneys= fees and costs, in accordance with 42 U.S.C. ‘ 9659(f).

4.     For such other and further relief as this Court may deem just and proper.

DATED:____________________            COX & MOYER

 

 

By:_______________________________

SCOTT J. ALLEN

Attorneys for Plaintiff

 

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2012

 

 

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