State of Colo. v. Asarco, Inc., Civ. A. No. 83-C-2388.

• Decision Date: 13 May 1985
• Docket Number: Civ. A. No. 83-C-2388.
• Parties: STATE OF COLORADO, Plaintiff, v. ASARCO, INC., Resurrection Mining Company, the Res-Asarco Joint Venture, Defendants, v. LEADVILLE CORPORATION, Sharon Steel Corporation, C & H Development Corporation, Hecla Mining Company, Rock Hill Mines Company, Larry E. Andersen, Evelyn Furman, Herman Hauser, Calvin Hauser, Clay Hauser, Walter Plattner, William J. Whatley, Aldred T. Whatley, D.P. Canty, Margaret Plattner Counter, Third Party Defendants.
• Court: U.S. District Court — District of Colorado

608 F. Supp. 1484

STATE OF COLORADO, Plaintiff, v. ASARCO, INC., Resurrection Mining Company, the Res-Asarco Joint Venture, Defendants, v. LEADVILLE CORPORATION, Sharon Steel Corporation, C & H Development Corporation, Hecla Mining Company, Rock Hill Mines Company, Larry E. Andersen, Evelyn Furman, Herman Hauser, Calvin Hauser, Clay Hauser, Walter Plattner, William J. Whatley, Aldred T. Whatley, D.P. Canty, Margaret Plattner Counter, Third Party Defendants.

Civ. A. No. 83-C-2388.

United States District Court, D. Colorado.

May 13, 1985.

Robert A. Hykan, Richard L. Griffith, Janice L. Burnett, Asst. Attys. Gen., Natural Resources Section, Denver, Colo., for plaintiff.

Christopher Lane/Alan Gilbert/Ronald Eddy, Denver, Colo., Earl Madsen, Golden, Colo., Peter Cosgriff, Cosgriff, Dunn and Berry, Leadville, Colo., Richard Greengard/Robert Simon, Greengard & Senter, Donald Burkhardt, Denver, Colo., F. Alan Fletcher/John F. Waldo, Salt Lake City, Utah, John McClure/Ann Rice, Smart, Defurio & McClure, Denver, Colo., for defendants and third-party defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

The State of Colorado instituted this action against ASARCO, Inc., Resurrection Mining Company and the Res-ASARCO Joint Venture seeking recovery of response costs and damages for injury to natural resources pursuant to § 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607. The State alleges that hazardous substances have been released from the defendants' mine workings and have drained through the Yak Tunnel, near Leadville, Colorado, into the California Gulch and the Arkansas River. The State further alleges that these hazardous substances have injured natural resources, including fish, wildlife, biota, air, surface water, ground water, and drinking water.

Defendants filed third-party complaints seeking contribution from fifteen named third-party defendants who allegedly own mining claims through which the Yak Tunnel and its laterals traverse, and thus, allegedly, are co-owners of the Yak Tunnel and its laterals. Defendants allege that if they are held jointly and severally liable for the injuries to natural resources alleged in the complaint, the third-party defendants are liable over to them for the portion of the damage caused by releases from the third-party defendants' facilities.¹

In addition, the defendants, pursuant to Rule 23, Fed.R.Civ.P., ask that I certify a class, to be represented by the named third-party defendants, consisting of all persons who have ownership and other interests in the Yak Tunnel and its laterals. It is estimated that there are 200 to 500 potential third-party defendant class members. This motion for class certification is reserved for later decision and not decided in this opinion.

At a hearing on March 29, 1985, I ordered the parties to brief the issue whether there is a right to contribution under CERCLA § 107, 42 U.S.C. § 9607. Plaintiff and the third-party defendants Hecla Mining Company, Sharon Steel Corporation, Leadville Mining Corporation, William J. Whatley, Alfred T. Whatley, and D.P. Canty have moved to dismiss the third-party complaints asserting that there is no such right. Defendants, on the other hand, argue that CERCLA does provide a right to contribution.

A right to contribution under a federal statute may arise in either of two ways: "first, through the affirmative creation of a right of action by Congress either expressly or by clear implication; or, second, through the power of federal courts to fashion a federal common law of contribution." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 2065-66, 68 L.Ed.2d 500 (1981); see also Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). After review of the statute and its legislative history, I conclude, for the reasons stated below, that Congress empowered the federal courts to establish a federal common law of liability under § 107, and to decide whether contribution among responsible parties shall be permitted.

To date the liability issue most litigated under § 107 has been whether CERCLA provides for joint and several liability. The Senate bill that led to CERCLA, S. 1480, originally provided for joint, several and strict liability. S. 1480, 96th Cong., 2d Sess. § 4(a), 126 Cong.Rec. 30,908 (1980) (as reported out of the Senate Committee on Environment and Public Works). Put before the compromise version of the bill was finally presented to the Senate and passed on November 24, 1980, this express provision for joint and several liability was deleted. Similarly, the bill initially passed by the House on September 23, 1980 provided explicitly for joint and several liability. H.R. 7020, 96th Cong., 2d Sess. § 3071, 126 Cong.Rec. 26,779 (1980). However, H.R. 7020 did not survive; it was deleted in toto and the bill finally passed by the House on December 3, 1980 merely substituted the Senate compromise bill that had passed in the Senate on November 24, 1980. 126 Cong.Rec. 31,950-31,964 (1980).

It is clear, however, that the deletion of all references to joint and several liability from the Act did not signify that Congress rejected those standards of liability. After reviewing the legislative history, Chief Judge Rubin concluded as follows in United States v. Chem-Dyne Corp., 572 F.Supp. 802, 808 (S.D.Ohio 1983):

"A reading of the entire legislative history in context reveals that the scope of liability and term joint and several liability were deleted to avoid a mandatory legislative standard applicable in all situations which might produce inequitable results in some cases. The deletion was not intended as a rejection of joint and several liability. Rather, the term was omitted in order to have the scope of liability determined under common law principles, where a court performing a case by case evaluation of the complex factual scenarios associated with multiple-generator waste sites will assess the propriety of applying joint and several liability on an individual basis." (Citations omitted.)

Chief Judge Rubin further concluded that federal, rather than state, common law should be developed and applied and that under federally-created uniform law defendants causing an indivisible harm are subject to joint and several liability. 572 F.Supp. at 808-811. Other courts have similarly held that joint and several liability may be imposed on § 107 responsible parties. United States v. South Carolina Recycling and Disposal, Inc., 20 E.R.C. 1753, 1758-60 (D.S.C. February 23, 1984); United States v. Conservation Chemical Co., 589 F.Supp. 59, 62-63 (W.D.Mo.1984); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823, 845 (W.D.Mo.1984); United States v. A & F Materials Co., Inc., 578 F.Supp. 1249, 1255-57 (S.D.Ill.1984); United States v. Wade, 577 F.Supp. 1326 (E.D.Pa.1983).

Contribution among responsible parties was an integral part of the joint and several liability scheme of both the Senate and House bills. S. 1480 as reported out of the Senate Committee on Environment and Public Works included a detailed contribution provision. Section 4(f) provided as follows:

"(f)(1) In any case where a person held liable under this section can demonstrate by a preponderance of the evidence that (A) the contribution of such person to a discharge, release, or disposal of a hazardous substance can be distinguished or apportioned and (B) such contribution was not a significant factor in causing or contributing to the discharge, release, or disposal or the damages resulting therefrom, the liability of such person shall be limited to that portion of the release or damages to which such person contributed.

(2) In any action brought under this section or section 6(c) of this Act, a person held jointly and severally liable with one or more other persons is entitled to seek contribution from such persons to the extent of the proportionate liability of such persons. In any case where a person held liable under this section alleges that the discharge, release, or disposal or the consequent damages are solely or in part due to the act or omission of a third party, such person retains all rights against such third party and shall be entitled to join such third party as a defendant in an action under this section or section 6(c) of this Act.

(3) Any matter or action concerning limitation or apportionment of liability under paragraph (1) or contribution under paragraph (2) of this subsection shall occur following determination of liability under subsection (a) of this section and appropriate payment of claims to any claimant, except to the extent such matter may be resolved pursuant to Rule 56 of the Federal Rules of Civil Procedure. The claimant is not an indispensable party in such matter or action.

(4) In apportioning or limiting liability of any party under this section, the trier of fact may consider factors, including —

(i) the ability of the party to demonstrate that his contribution to a discharge, release or disposal of a hazardous substance can be distinguished;

(ii) the amount of hazardous substance involved;

(iii) the degree of toxicity of the hazardous substance involved;

(iv) the degree of involvement in the manufacture, treating, transporting, disposing of the hazardous substance; and

(v) the degree of cooperation with Federal, State, or local officials to prevent any harm to the public health or the environment." 126 Cong.Rec. 30,909 (1980); see S. Rep. No. 96-848, 96th Cong., 2d Sess. 38-39 (1980).

H.R. 7020 as passed by the House on September 23, 1980 provided for joint and several liability, but then modified that standard by also providing a method of apportioning liability. Section 3071(a)(3) read as follows:

"(3)(A) If a generator or transporter of hazardous waste establishes by a preponderance of the evidence

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