Dico, Inc. v. Diamond
| Decision Date | 17 May 1993 |
| Docket Number | Civ. No. 4-92-70375. |
| Citation | 821 F. Supp. 562 |
| Parties | DICO, INC., Plaintiff, v. Bruce M. DIAMOND, as Director, Office of Waste Programs Enforcement, United States Environmental Protection Agency; Carol M. Browner, as Administrator of the United States Environmental Protection Agency; United States Environmental Protection Agency; William J. Clinton, as President of the United States; and the United States of America, Defendants. |
| Court | U.S. District Court — Southern District of Iowa |
Michael M. Sellers, Des Moines, IA, Charles F. Lettow, Washington, DC, for plaintiff.
Christopher D. Hagen, U.S. Atty., Des Moines, IA, Vicki A. O'Meara, Karen L. Egbert, Environment & Natural Resources Div., Marc Smith, Gen. Litigation Section, Dept. of Justice, Paul Bangser, Environmental Protection, Office of Gen. Counsel, Washington, DC, for defendants.
Plaintiff Dico, Inc. ("Dico") brings suit against defendants Bruce M. Diamond, as Director of the Office of Waste Programs Enforcement, United States Environmental Protection Agency, et al., seeking reimbursement of costs it incurred, and will incur in the future, pursuant to an administrative order by the United States Environmental Protection Agency ("EPA" or "the EPA"), in cleaning up a contaminated groundwater site in Des Moines, Iowa (the Des Moines Trichloroethylene ("TCE") site). Dico's complaint3 alleges that it is entitled to reimbursement under the Comprehensive Environmental Response, Compensation, and. Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 (Counts I-III); the Due Process Clause of the Fifth Amendment to the United States Constitution (Count IV); and the Takings Clause of the Fifth Amendment to the United States Constitution (Count V). Defendants move for summary judgment on Counts I-III and to dismiss Counts IV and V. Dico resists. Dico moves for partial summary judgment on Counts I-III and for summary judgment on Counts IV and V. Defendants resist. The motions are submitted.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To preclude the entry of summary judgment, the nonmovant must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Continental Grain Co. v. Frank Seitzinger Storage, Inc., 837 F.2d 836, 838 (8th Cir.1988). Rule 56(e) requires the nonmoving party to go beyond the pleadings and by affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Johnson v. Schopf, 669 F.Supp. 291, 295 (D.Minn.1987). "In designating specific facts, `the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment' because Rule 56(c) requires `that there be no genuine issue of material fact.'" Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 272 (8th Cir. 1992) (citation omitted) (emphasis in original). The quantum of proof that the nonmoving party must produce is not precisely measurable, but it must be "enough evidence so that a reasonable jury could return a verdict for the nonmovant." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986); Johnson, 669 F.Supp. at 295-96.
On a motion for summary judgment, the court views all the facts in the light most favorable to the nonmoving party, and gives that party the benefit of all reasonable inferences that can be drawn from the facts. United States v. City of Columbia, Mo., 914 F.2d 151, 153 (8th Cir.1990); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990).
CERCLA was enacted in 1980 "to bring order to the array of partly redundant, partly inadequate federal hazardous substances cleanup and compensation laws," New York v. Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir.1985), and to address "the growing problem caused by the large number of uncontrolled `inactive hazardous waste sites,'" United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 838 (W.D.Mo.1984) (citation omitted), aff'd in part & rev'd in part, 810 F.2d 726 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). CERCLA was designed to ensure "the prompt cleanup of hazardous waste sites." J.V. Peters & Co. v. Administrator, EPA, 767 F.2d 263, 264 (6th Cir.1985) (citation omitted). To accomplish this goal, CERCLA grants EPA the authority,4 upon a determination that there is an actual or threatened release of a hazardous substance, to either "take direct response action to clean up a site and later seek reimbursement from the polluters, or to require the `responsible parties' to conduct a cleanup." Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1324 (7th Cir.1990).
To "encourage potentially responsible parties to conduct a cleanup expeditiously and postpone litigation about responsibility to a later time, Congress amended CERCLA, effective October 17, 1986, to give any party that `receives and complies' with a cleanup order the right to petition for reimbursement." Id. at 1324 ().5 To obtain reimbursement, a petitioner must establish "by a preponderance of the evidence that it is not liable for response costs under section 9607(a) of this title and that costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order." 42 U.S.C. § 9606(b)(2)(C). "If the EPA refuses to grant all or part of a section 9606(b)(2) petition for reimbursement, the petitioner may within 30 days of receipt of such refusal file an action ... in the appropriate United States district court seeking reimbursement." Id. § 9606(b)(2)(B).
For purposes of the summary judgment motions the following facts are undisputed. In September 1983, the Des Moines TCE site was placed on the National Priorities List.6 On July 21, 1986, EPA issued an Administrative Order under 42 U.S.C. section 9606(a) to Dico directing the cleanup of hazardous substances at the Des Moines TCE site. The order states that "all reports, plans, specifications, and schedules submitted pursuant to this Order are, upon approval by EPA, incorporated into this Order." The order also states that "this Order is effective immediately upon receipt by Dico and all times for performance of actions pursuant to this order shall be calculated from that date." On September 8, 1986, Dico submitted to EPA "a listing of those portions of the order which it believes are not appropriate or could hinder the implementation" of the response actions required by the order.
On October 17, 1986, the Superfund Amendment and Reauthorization Act of 1986 ("SARA") became effective, creating in CERCLA section 106(b)(2), 42 U.S.C. § 9606(b)(2), a new cause of action for reimbursement of cleanup costs to a non-liable party who "receives and complies with the terms of any administrative order...."
In letters dated October 21, October 24, and November 28, 1986, the EPA addressed Dico's suggested changes to the response action required by the order; the EPA agreed to some, but not all, of the changes suggested by Dico. On July 8, 1988, Dico petitioned EPA for reimbursement of costs it incurred in carrying out the response action required by the order.7 On May 11, 1992, EPA issued a final decision denying Dico's petition for reimbursement on the basis that the reimbursement provision does not apply to parties who received orders under section 9606(a) prior to the date of enactment of SARA.
The fighting issue in this case revolves around the CERCLA reimbursement provision, 42 U.S.C. § 9606(b)(2). Briefly stated, defendants contend that the reimbursement amendment applies only to those who both receive an order and comply with it after the effective date of the amendment. Defendants further assert that because Dico received the order before SARA's effective date, SARA's provisions are not applicable. Dico, on the other hand, argues that it is a party who has "received and complied" with an order and is therefore entitled to claim reimbursement.
In Count I of its complaint Dico contends that the EPA's interpretation of section 9606(b) contravenes the language and history of the provision. Dico argues that the plain language and the relevant legislative history of section 9606(b)(2) indicates that it is entitled to reimbursement, and that giving effect to the plain meaning of section 9606(b)(2) avoids the need to resolve a constitutional question and promotes Congress's purposes. Dico also argues that EPA's construction of section 9606(b)(2) is not entitled to judicial deference and section 9606(b)(2) should not be narrowly construed as a waiver of sovereign immunity. Defendants contend EPA's interpretation of the "receives and complies" language of section 9606(b) is entitled to judicial deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Defendants argue further that EPA's prospective-only interpretation of the reimbursement provision is consistent with the statutory language, history and purpose, and with the principle of narrowly interpreting waivers of sovereign immunity.
It is Dico's position that the...
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Dico, Inc. v. Diamond
...to clean up a contaminated groundwater site in Des Moines, Iowa. The District Court granted summary judgment in favor of the defendants, 821 F.Supp. 562, and Dico appeals. We reverse and remand with The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C......
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Dico, Inc. v. U.S., 93-5124
...court dismissed Dico's declaratory relief claims and granted the Government summary judgment on the statutory claims. Dico, Inc. v. Diamond, 821 F.Supp. 562 (S.D.Iowa 1993). Dico appealed to the Eighth Circuit, which reversed the district court's ruling on the statutory claims, holding that......