United States v. Chem-Dyne Corp.

• Decision Date: 14 October 1983
• Docket Number: No. C-1-82-840.,C-1-82-840.
• Citation: 572 F. Supp. 802
• Parties: UNITED STATES of America, Plaintiff, v. CHEM-DYNE CORP., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

572 F. Supp. 802

UNITED STATES of America, Plaintiff, v. CHEM-DYNE CORP., et al., Defendants.

No. C-1-82-840.

United States District Court, S.D. Ohio, W.D.

October 11, 1983.

As Amended October 14, 1983.

COPYRIGHT MATERIAL OMITTED

Christopher Barnes, U.S. Atty., Elizabeth Whitaker, Asst. U.S. Atty., Cincinnati, Ohio, Carol E. Dinkins, Asst. Atty. Gen., Barry S. Sandals, James J. Dragna, Joyce R. Branda, Richard Lazarus, Land & Natural Resource Div., Deborah Woitte, U.S. Environmental Protection Agency, Washington, D.C., Jonathan McPhee, U.S. Environmental Protection Agency, Chicago, Ill., E. Dennis Muchnicki, Steven J. Willey, Asst. Attys. Gen., Environmental Law Section, Columbus, Ohio, for plaintiff.

Steve Williams, Wood, Lamping, Slutz & Reckman, Cincinnati, Ohio, for defendants Hamilton Industrial Real Es., B & W Enterprises, Whitco Enterprises and William L. Kovas.

John A. Garretson, Hamilton, Ohio, for Zettler.

Christopher R. Schraff, Martin S. Seltzer, Columbus, Ohio, for defendants Rohm & Haas Co., Delaware, Tennessee, Connecticut, Inc., CIBA-GEIGY Corp., and Shell Oil.

Alex S. Karlin, Houston, Tex., for defendant Shell Oil Co.

Ellen S. Friedell, Philadelphia, Pa., for defendant Rohm & Haas Co.

Robert A. Naidus, Ardsley, N.Y., for defendant CIBA-GEIGY Corp.

Gerald L. Baldwin, William H. Hawkins, Cincinnati, Ohio, Fred A. Windover, North Adams, Mass., for defendants Allied Corp., Aurora Casket Co. and Sprague Elec.

Thomas T. Terp, Cincinnati, Ohio, Richard W. Kearney, Gen. Counsel, Needham Heights, Mass., for defendants Ludlow Corp., Astro Containers, Inc. and The B.F. Goodrich Co.

R. Joseph Parker, Kim Burke, Cincinnati, Ohio, Phocion S. Park, St. Louis, Mo., for defendants Monsanto Co. and C.W. Zubiel Co.

Robert C. McIntosh, Arthur Knabe, Cincinnati, Ohio, for defendant Frank Irey, Jr., Inc.

Michael Szolosi, Columbus, Ohio, for defendants World Pipe Service Co., Kipin Industries and Frank Irey, Jr., Inc.

Daniel J. Gunsett, Columbus, Ohio, William W. Falsgraf, Cleveland, Ohio, for defendants Phillips Petroleum Co. and Browning Ferris Industries.

David C. Greer, Dayton, Ohio, for defendant Searle Medical Products.

John R. Cromer, Indianapolis, Ind., Thomas Ravis, Pittsburgh, Pa., for defendant Anvil Products Inc.

Richard L. Creighton, Jr., Cincinnati, Ohio, for defendant Liberty Solvents & Chemical.

Mark Wallach, Cleveland, Ohio, for defendant Chemical Solvents.

Thomas L. Conlan, Cincinnati, Ohio, John D. Tully, Warner Norcross & Judd, Grand Rapids, Mich., for defendant Bofors-Nobel, Inc.

ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

CARL B. RUBIN, Chief Judge.

This matter is before the Court on the Motion of the defendants for Partial Summary Judgment under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607 ("CERCLA"). Plaintiff United States has sued 24 defendants, who allegedly generated or transported the hazardous substances located at the Chem-Dyne treatment facility, for reimbursement of the superfund money expended to institute remedial action at the site. In order to expedite discovery and trial preparation, the defendants have moved for an early determination that they are not jointly and severally liable for the clean-up costs at Chem-Dyne. Manual for Complex Litigation, § 1.80 (1977).

A. Statutory Construction

The defendants have moved for a determination of the scope of liability under CERCLA, 42 U.S.C. § 9607 which is a matter of first impression to this Court. At present, there is no case authority specifically addressing this point.

The analysis begins with an examination of the germane statutory language. Dickerson v. New Banner Institute, Inc., ___ U.S. ___, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). The statutory definition of liability is the standard of liability which obtains under 33 U.S.C. § 1321. 42 U.S.C. § 9601(32). The pertinent language provides that when the owner or operator of a vessel from which oil or hazardous substances is discharged in violation of § 1321(b)(3), he shall be liable to the United States Government for the actual costs ... 33 U.S.C. § 1321(f)(1). At the time of CERCLA's enactment, this section had been interpreted to impose a strict liability standard. Steuart Transportation Co. v. United States, 596 F.2d 609, 613 (4th Cir.1979); United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314-15 (7th Cir.1978); Burgess v. M/V Tamano, 564 F.2d 964, 982 (1st Cir. 1977), cert. denied, 435 U.S. 941, 98 S.Ct. 1520, 55 L.Ed.2d 537 (1978); Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907 (S.D.N.Y.1977), aff'd in part, rev'd in part on other grounds, 584 F.2d 1151 (2d Cir.1978). It is proper to assume Congress was aware of the judicial interpretation of section 1321 as a strict liability standard. Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-1958, 60 L.Ed.2d 560 (1979). In fact, the legislative history of the statute directly supports this finding. 126 Cong.Rec. S14964 (Nov. 24, 1980) H11787 (Dec. 3, 1980).

The liability section lists the classes of persons potentially liable under the Act for the costs incurred by government removal or remedial action.¹ United States v. Waste Industries, Inc., 556 F.Supp. 1301 (E.D.N.C.1983); City of Philadelphia v. Stephan Chemical Co., 544 F.Supp. 1135 (E.D. Pa.1982). In contrast to plaintiff's assertion that joint and several liability is clear from the express statutory language, the Court finds the language ambiguous with regard to the scope of liability. Consequently, in an attempt to discern the Congressional intent, the Court will review and weigh the legislative history of the Act. Dickerson, ___ U.S. at ___, 103 S.Ct. at 986.

CERCLA was enacted both to provide rapid responses to the nationwide threats posed by the 30-50,000 improperly managed hazardous waste sites in this country as well as to induce voluntary responses to those sites. 5 U.S.Code Cong. & Ad.News 6119, 6119-6120 (1980). The legislation establishes a 1.6 billion dollar trust fund ("superfund"), drawn from industry and federal appropriations, to finance the clean-up and containment efforts. Id. at 6119. The state or federal government may then pursue rapid recovery of the costs incurred from persons liable to reimburse the superfund money expended. This recovery task may prove difficult when several companies used a site, when dumped chemicals react with others to form new or more toxic substances, or when records² are unavailable. Nevertheless, those responsible for the problems caused by the hazardous wastes were intended to bear the costs and responsibilities for remedying the condition. 5 U.S.Code Cong. & Ad.News at 6119.

As background, two different superfund bills proceeded simultaneously through the House and Senate. On November 24, 1980, the Senate made its final amendment to its bill, thereby eliminating the term strict, joint and several liability from its provisions. 126 Cong.Rec. S14964 (Nov. 24, 1980). Subsequently, on December 3, 1980, the House struck the language in its bill and substituted the language of the Senate bill, which was later enacted. 126 Cong. Rec. H11787 (Dec. 3, 1980).

The defendants quote at length from Senator Helms' speech:

Retention of joint and several liability in S. 1480 received intense and well-deserved criticism from a number of sources, since it could impose financial responsibility for massive costs and damages awards on persons who contributed only minimally (if at all) to a release or injury. Joint and several liability for costs and damages was especially pernicious in S. 1480, not only because of the exceedingly broad categories of persons subject to liability and the wide array of damages available, but also because it was coupled with an industry-based fund. Those contributing to the fund will frequently be paying for conditions they had no responsibility in creating or even contributing to. To adopt a joint and several liability scheme on top of this would have been grossly unfair.

The drafters of the Stafford-Randolph substitute have recognized this unfairness, and the lack of wisdom in eliminating any meaningful link between culpable conduct and financial responsibility. Consequently, all references to joint and several liability in the bill have been deleted...

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.

126 Cong.Rec. S15004 (Nov. 24, 1980). This view of statutory construction is at odds with the guidelines provided by the Supreme Court. Senator Helms was an opponent of the bill. Id. at S14988. Accordingly, his statements are entitled to little weight in construing the statute. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n. 24, 96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1975); Holtzman v. Schlesinger, 414 U.S. 1304, 1313 n. 13, 94 S.Ct. 1, 6 n. 13, 38 L.Ed.2d 18 (1973); United States v. Calamaro, 354 U.S. 351, 357, 77 S.Ct. 1138, 1142, 1 L.Ed.2d 1394 (1956); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 288, 76 S.Ct. 349, 360, 100 L.Ed. 309 (1956); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394, 71 S.Ct. 745, 750, 95 L.Ed. 1035 (1951).

Senator Stafford, sponsor of the bill, succinctly noted that there was an elementation of the term joint and several liability as well as an elimination of the scope of liability. 126 Cong.Rec. S14969 (Nov. 24, 1980). Senator Randolph, sponsor, explained the significance of these modifications:

We have kept strict liability in the compromise, specifying the standard of liability under section 311 of the Clean Water Act, but we have deleted any reference to joint and several liability, relying on common law principles to determine when parties should be severally liable... The changes were

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