United States v. A & F Materials Co., Inc., Civ. No. 83-3123.

CourtUnited States District Courts. 7th Circuit. Southern District of Illinois
Writing for the CourtFOREMAN
Citation578 F. Supp. 1249
PartiesUNITED STATES of America, et al., Plaintiffs, v. A & F MATERIALS COMPANY, INC., et al., Defendants.
Docket NumberCiv. No. 83-3123.
Decision Date20 January 1984

578 F. Supp. 1249

UNITED STATES of America, et al., Plaintiffs,
v.
A & F MATERIALS COMPANY, INC., et al., Defendants.

Civ. No. 83-3123.

United States District Court, S.D. Illinois.

January 20, 1984.


578 F. Supp. 1250
COPYRIGHT MATERIAL OMITTED
578 F. Supp. 1251
John P. Lynch, Lawrence H. Levine, Mark A. Stegemoeller, Latham, Watkins, Hedlund, Hunter & Lynch, Chicago, Ill., John W. Leskera, Dunham, Boman & Leskera, East St. Louis, Ill., Burton M. Greenberg, London, Greenberg & Plegan, St. Louis, Mo., Max W. Hittle, Jr., Krieg, Devault, Alexander & Capehart, Indianapolis, Ind., S. Richard Heymann, Eric B. Rothenberg, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for defendants

Robert Van Heuvelen, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Bruce Reppert, Robert Simpkins, Asst. U.S. Attys., East St. Louis, Ill., Jane Schulteis, U.S. Environmental Protection Agency, Bob Mueller, Asst. Atty. Gen., State of Ill. Environmental Control Div., Chicago, Ill., for plaintiffs.

MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court are numerous motions to dismiss attacking the government's amended complaint and the complaint in intervention. The government instituted this environmental action pursuant to § 311 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1321, § 7003 of the Resource Conservation & Recovery Act (RCRA), 42 U.S.C. § 6973, and various provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., which is also known as Superfund. The State of Illinois intervened in this action and filed claims under the three federal statutes and the Illinois Environmental Protection Act, Ill.Rev. Stat., ch. 111½, para. 1012(a). The motions before the Court can be summarized as follows:

1. Motion of generator defendants to strike all reference to joint and several liability from the complaint.

578 F. Supp. 1252

2. Motion of generator defendants to dismiss plaintiff's claim for mandatory injunctive relief.

3. Motion of generator defendants to dismiss plaintiff's claim for cost reimbursement under Superfund.

4. Motion of generator defendants to dismiss the complaint in intervention of the State of Illinois.

5. Motion of defendant CAM-OR to dismiss for failure to sue indispensible parties.

6. Motion of defendant Petrolite to dismiss for failure to state a claim.

BACKGROUND

The subject of this dispute is a waste disposal site located on West Cumberland Street, Greenup, Illinois. The government alleges that from 1977 to 1980 over seven million gallons of wastes were deposited at the Greenup facility and placed into lagoons and tanks. The government alleges further that there have been releases and discharges of hazardous substances into the groundwater, adjacent fields, and into the nearby Embarras River. The authors of the present motions, Aluminum Company of America (Alcoa), Northern Petrochemical Company (NPC), CAM-OR, Inc., Petrolite Corporation and McDonnell-Douglas Corporation, herein referred to as the generator defendants, allegedly arranged for the disposal of their wastes at the Greenup site.

The resolution of the motions before the Court depends in part on the interpretation of three federal statutes. The Resource Conservation & Recovery Act, 42 U.S.C. §§ 6901-6987, is a regulatory statute authorizing the EPA to establish prospective standards for dealing with hazardous wastes. However, § 6973 of the Act gives the government authority to bring abatement actions to protect the environment. The government contends that under § 6973 it has stated a claim for mandatory injunctive relief.

The government's claim under § 311 of FWPCA, 33 U.S.C. § 1321, is also for injunctive relief. Section 311 contains an abatement provision similar to § 6973 of RCRA. However, under § 311 the actual or threatened discharge must be into navigable waters of the United States.

The government's third and most extensive federal claim is under CERCLA, 42 U.S.C. § 9601 et seq. CERCLA was enacted to provide a more comprehensive solution to the problem of hazardous waste sites. Section 9606 contains an abatement provision similar to those in RCRA and FWPCA. However, § 9604 and § 9607 establish a new approach to the hazardous waste problem. Section 9604 authorizes the government to clean up hazardous wastes by utilizing a 1.6 billion dollar fund, and § 9607 authorizes recoupment actions and defines who is liable for the costs of the cleanup.

CERCLA was enacted because Congress realized there were serious gaps in RCRA. H.R.Rep. No. 1016, 96th Cong. 2d Sess., pt. 1, 18, reprinted in 5 U.S.Code Cong. & Ad.News 6119, 6120 (1980); 126 Cong.Rec. H9459-60 (September 23, 1980). First, RCRA does not apply to the thousands of dormant sites that are not currently posing an imminent hazard. United States v. Price, 557 F.Supp. 1103 (D.N.J.1983). Secondly, Congress was concerned about the difficulty in locating financially responsible owners of hazardous waste sites. H.R.Rep. No. 1016 supra, at 22, reprinted in 5 U.S.Code Cong. & Ad.News at 6125 (1980). CERCLA authorizes the government to sue transporters and generators of hazardous waste. The establishment of the Superfund, which is funded primarily from taxes on the chemical industry, and the inclusion of generators in the liability provision of CERCLA, signals a clear legislative intent to impose on the chemical industry financial responsibility under that Act.

I. JOINT AND SEVERAL LIABILITY UNDER CERCLA

CERCLA's liability provisions, 42 U.S.C. § 9607, unfortunately do little more than declare who is liable under the Act. The Act on its face does not address the difficult

578 F. Supp. 1253
questions presented when there are dozens, even hundreds, of potentially liable parties. The characteristics of a typical waste disposal site and the characteristics of the waste disposal industry itself, make the issue of joint and several liability a critical one. Due to commingling and chemical reactions in tanks and lagoons, it will be very difficult if not impossible in some cases for the government to prove which generator is responsible for the leakage. The imposition of joint and several liability will in effect put the burden on defendants. Moreover, with joint and several liability, the government will be able to recover its entire costs, including costs actually caused by unknown or insolvent generators. See 126 Cong.Rec. H9463-65 (daily ed. September 23, 1980. Remarks of Representative Gore.)

A. Legislative History and Statutory Language

CERCLA was enacted on December 11, 1980 in the last days of the 96th Congress. The final version of the Act was conceived by an ad hoc committee of Senators who fashioned a last minute compromise which enabled the Act to pass. As a result, the statute was hastily and inadequately drafted.1 The only legislative history on the compromise is found in the floor debates. 126 Cong.Rec. S14,962-15,009 (daily ed. November 24, 1980); 126 Cong.Rec. H11,786-802 (daily ed. December 3, 1980). Originally both Houses of Congress introduced bills that provided for joint and several liability. H.R. 7020 and S. 1480. The compromise that was enacted, however, eliminated any reference to joint and several liability.

Defendants argue the elimination of the words joint and several from the Act conclusively establishes Congressional intent not to impose joint and several liability. However, the floor debates on the compromise bill suggest that the deletion of joint and several language does not necessarily prevent imposition of a joint and several standard by the courts. Two Senators spoke to the issue on the floor of the Senate, Senator Randolph, one of the sponsors of the Act, and Senator Helms, an opponent of the Act who eventually voted against it. The positions taken by these Senators were inconsistent and irreconciliable. Senator Randolph said the issue of joint and several liability was "unresolved" and that courts should determine the liability of joint tort-feasors "under common or previous statutory law." 126 Cong.Rec. S14964 (daily ed. November 24, 1980). Senator Helms, on the other hand, stated that joint and several liability was precluded.

It is very clear from the language of the Stafford-Randolph substitute itself, from the legislative history, and from the liability provisions of section 311 of the Federal Water Pollution Control Act, that now the Stafford-Randolph bill does not in and of itself create joint and several liability. The Government can sue a defendant under the bill only for those costs and damages that it can prove were caused by the defendant's conduct.

Id. at S15,004.

When the compromise bill went to the House, there was much more agreement as to what the deletion of the terms joint and several meant. Representative Florio and Representative Jeffords both stated that evolving principles of common law would determine the liability of joint tort-feasors. 126 Cong.Rec. H11787 and H11799. In addition, Representative Gore (H11,801) and Representative Mikulski (H11,796) stated

578 F. Supp. 1254
that the compromise bill was essentially the same as the House bill which gave the Courts authority to impose joint and several liability under certain circumstances

In light of the legislative history, the Court concludes that Congress did not intend to preclude the imposition of joint and several liability. First, Senator Helm's interpretation of the compromise stands alone, and his interpretation is suspect because he was an opponent of the bill. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n. 24, 96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1976). See United States of America v. Chem-Dyne Corp., 572 F.Supp. 802, 806 (S.D.Ohio 1983). Second, Senator Randolph's interpretation of the deletion of the terms joint and several does represent a significant compromise by the proponents of joint and several liability. Senators Stafford and...

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63 practice notes
  • US v. Atlas Minerals and Chemicals, Inc., Civ. A. No. 91-5118.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 3, 1992
    ...divisible among several defendants, see Alcan, 964 F.2d at 267-69; Monsanto, 858 F.2d at 171-72, United States v. A & F Materials Co., 578 F.Supp. 1249, 1254-57 (S.D.Ill.1984), a court's ability to consider these factors insures that individual defendants will pay their fair share of cleanu......
  • Connecticut Bldg. Wrecking Co., Inc. v. Carothers, No. 14181
    • United States
    • Supreme Court of Connecticut
    • May 7, 1991
    ...sub nom. American Cyanamid Co. v. O'Neil, --- U.S. ----, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. A & F Materials Co., 578 F.Supp. 1249, 1255 (S.D.Ill.1984); see also, applying a different adaptation of the Restatement principles, United States v. Western Processing Co., 73......
  • California Dep. of Toxic v. Interstate Non-Ferrous, No. CIVF97-5016 OWW LJO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 28, 2003
    ...States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823, 844-45 (W.D.Mo.1984); United States v. A & F Materials Co., 578 F.Supp. 1249, 1256-57 (S.D.Ill.1984); United States v. Wade, 577 F.Supp. 1326, 1338 (E.D.Pa. 1983); United States v. Chem-Dyne, 572 F.Supp. 802, 807 n. 3 ......
  • U.S. v. Township of Brighton, Nos. 96-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 1998
    ...further. See Bell, 3 F.3d at 901; Monsanto, 858 F.2d at 171 n. 22. That approach, epitomized by United States v. A & F Materials Co., 578 F.Supp. 1249 (S.D.Ill.1984), incorporates into divisibility the broad equitable bases of apportionment found in the contribution analysis of § 9613(f), n......
  • Request a trial to view additional results
63 cases
  • US v. Atlas Minerals and Chemicals, Inc., Civ. A. No. 91-5118.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 3, 1992
    ...divisible among several defendants, see Alcan, 964 F.2d at 267-69; Monsanto, 858 F.2d at 171-72, United States v. A & F Materials Co., 578 F.Supp. 1249, 1254-57 (S.D.Ill.1984), a court's ability to consider these factors insures that individual defendants will pay their fair share of cleanu......
  • Connecticut Bldg. Wrecking Co., Inc. v. Carothers, No. 14181
    • United States
    • Supreme Court of Connecticut
    • May 7, 1991
    ...sub nom. American Cyanamid Co. v. O'Neil, --- U.S. ----, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); United States v. A & F Materials Co., 578 F.Supp. 1249, 1255 (S.D.Ill.1984); see also, applying a different adaptation of the Restatement principles, United States v. Western Processing Co., 73......
  • California Dep. of Toxic v. Interstate Non-Ferrous, No. CIVF97-5016 OWW LJO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 28, 2003
    ...States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823, 844-45 (W.D.Mo.1984); United States v. A & F Materials Co., 578 F.Supp. 1249, 1256-57 (S.D.Ill.1984); United States v. Wade, 577 F.Supp. 1326, 1338 (E.D.Pa. 1983); United States v. Chem-Dyne, 572 F.Supp. 802, 807 n. 3 ......
  • U.S. v. Township of Brighton, Nos. 96-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 1998
    ...further. See Bell, 3 F.3d at 901; Monsanto, 858 F.2d at 171 n. 22. That approach, epitomized by United States v. A & F Materials Co., 578 F.Supp. 1249 (S.D.Ill.1984), incorporates into divisibility the broad equitable bases of apportionment found in the contribution analysis of § 9613(f), n......
  • Request a trial to view additional results

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