United States v. Conservation Chemical Co., 82-0893-CV-W-5.

• Decision Date: 03 February 1984
• Docket Number: No. 82-0893-CV-W-5.,82-0893-CV-W-5.
• Citation: 589 F. Supp. 59
• Parties: UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, Norman B. Hjersted, Conservation Chemical Co. of Illinois, Armco Steel Corporation, FMC Corporation, International Business Machines Corp., Western Electric Company, Inc., Mobay Chemical, Defendants.
• Court: U.S. District Court — Western District of Missouri

589 F. Supp. 59

UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, Norman B. Hjersted, Conservation Chemical Co. of Illinois, Armco Steel Corporation, FMC Corporation, International Business Machines Corp., Western Electric Company, Inc., Mobay Chemical, Defendants.

No. 82-0893-CV-W-5.

United States District Court, W.D. Missouri, W.D.

February 3, 1984.

Kenneth Josephson, Asst. U.S. Atty., Kansas City, Mo., John R. Barker, Environmental Enforcement Section, Land Natural Resource Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Niewald, Waldeck, Norris & Brown, Terry L. Karnaze, Michael Waldeck, Kansas City, Mo., for defendants Conservation Chemical, Norman B. Hjersted, and Conservation Chemical of Illinois.

Martin J. Purcell, Stanley Reigel, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for defendant Armco, Inc.

John M. Kilroy, Jr., Thomas F. Fisher, Shughart, Thomson & Kilroy, Kansas City, Mo., for defendant FMC Corp.

James F. Duncan, Watson, Ess, Marshall & Enggas, Kansas City, Mo., Allan J. Topol, Covington & Burling, Washington, D.C., for defendant IBM Corp.

Jerome T. Wolf, Carl H. Helmstetter, Spencer, Fane, Britt & Browne, Kansas City, Mo., John A. McKinney, Jr., Alan R. Chesler, New York City, for defendant AT & T Techn., Inc. (formerly Western Electric).

Stephen Jacobson, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for defendant Mobay Chemical.

ORDER

SCOTT O. WRIGHT, District Judge.

The United States has brought this civil action to obtain injunctive relief in order to remedy a situation alleged by the government to present an imminent and substantial danger to public health and the environment caused by groundwater contamination from hazardous substances at the chemical disposal site of defendant Conservation Chemical Company ("CCC"). The suit seeks relief against the owner of the disposal site, CCC, and four generators (Armco, FMC, IBM and Western Electric) who allegedly sent hazardous waste to the site. This action is based on Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6973,¹ and Section 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9606(a).² In addition, the government seeks reimbursement of investigatory costs incurred at the disposal site pursuant to CERCLA § 107 and RCRA § 1007. Pending before the Court are motions to dismiss filed by the defendant generators, all of which will be denied. Although the Court will not address at this time all of the numerous arguments raised by the defendants in support of their motions, the Court makes the following determinations.

The government has made the following allegations in this case. The hazardous waste and disposal site which is the subject of this action has been owned and operated by CCC since 1960, and has been used since then to store or dispose of hazardous substances. From approximately 1960 to 1979, hazardous substances were deposited in several surface impoundments located at the site. These impoundments were either unlined or improperly lined, were from twenty to thirty feet deep, and were excavated down to the water table. The impoundments were enlarged and additional impoundments were constructed as more disposal capacity was desired. Hazardous wastes were dumped into the impoundments directly from trucks, pumped from tank trucks, and deposited in drums and other containers, including bulk storage tanks. At times, the hazardous substances overflowed the impoundments or were spilled at the site. Water sampling performed by the government in 1980 revealed groundwater contamination at the Conservation Chemical site and on adjoining property. Armco, FMC, IBM and Western Electric are corporations which arranged for the disposal of hazardous substances generated by them at the Conservation Chemical site.

In support of their motion to dismiss, the defendant generators urge this Court to follow United States v. Wade, 546 F.Supp. 785 (E.D.Pa.1982), in which the District Court ruled that CERCLA § 106 and RCRA § 7003 are not applicable to non-negligent off-site generators of hazardous wastes. In making its determination, the Court in Wade noted that no court at that time had construed § 7003 to be applicable to past off-site generators, and that there was nothing in the statutory language or the legislative history "that would authorize such a considerable extension of liability." Id. at 790. Regarding CERCLA § 106, the Wade court concluded that although CERCLA § 107 clearly includes past generators of hazardous waste among those potentially liable to be used for clean-up costs incurred under CERCLA § 104, CERCLA § 106 may not be used to confer liability on non-negligent past off-site generators of hazardous wastes because, in the Wade court's opinion, Congress intended § 106 to be used in emergency situations where hazardous waste was currently being discharged or threatened to be discharged from a facility and where such discharge could be stopped by an injunction. Id. at 794.

This Court, however, is in agreement with the reasoning and holding of United States v. Price, 577 F.Supp. 1103 (D.N.J. 1983), in which the District Court ruled that "CERCLA § 106 was intended and should apply to past off-site generators if the circumstances indicate an `imminent and substantial endangerment.'" At 1112. The court in Price expressly disagreed with both the reasoning used and the result obtained in Wade. In Price, the District Court noted that the Wade court construed § 106(a) in the same narrow manner that it construed § 7003 even though the imminent hazard provisions of § 106(a) are even broader than those articulated in § 7003. See United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1111 (D.Minn. 1982). The court in Price also pointed out that the Wade decision was prior to the Third Circuit's decision in United States v. Price, 688 F.2d 204 (3d Cir.1982), in which the court held that § 7003 could be applied to a dormant site if it poses a current threat to the environment or to public health. The district court in Price also noted that two cases, United States v. Reilly Tar, supra, 546 F.Supp. 1100, and United States v. Outboard Marine Corp., 556 F.Supp. 54 (N.D.Ill.1982), held that the government could bring an action against the owner of the dump site under § 106 even though the site was no longer active. The court in Outboard Motor observed that the Wade court's reasoning "cannot be reconciled with the views expressed here and by the district court in Reilly Tar." United States v. Outboard Motor, supra, 556 F.Supp. at 58.

Regarding RCRA § 7003, this Court will follow the ruling of the District Court in Price with respect to that section. The Price court observed that it "appears from the language of CERCLA and the accompanying legislative history, that Congress passed the statute in response to recognized deficiencies in RCRA .... One of the most frustrating problems with RCRA, was its perceived failure to take into account past, off-site generators who hired third parties to dump their waste...." United States v. Price, supra, at 1114 n. 12a. The Price court found it unnecessary to decide whether the generators could be held liable under other statutes such as RCRA § 7003, because it had concluded that past off-site generators can be liable for clean-up costs under CERCLA. Id. Accordingly, at this time the Court makes no comment on the issue of generator liability under § 7003, and recognizes that the issue may arise at a future date in this litigation.

The defendant generators next argue that the government has failed to state a cause of action under CERCLA § 106 in that the government has not alleged that the generators acted negligently. This Court, however, will again follow the District Court's decision in Price which held that past off-site generators should be held to a standard of strict liability. The court in Price noted that "`Congress included this imminent hazard authority § 106 in its CERCLA design and it should be given effect.... Whatever the source of the substantive law to be applied in a 106(a) action, it is most probable that those who would be liable under Section 107 were intended to be liable in an action under 106(a) for injunctive relief.'" United States v. Price, supra, at 1113, quoting United States v. Outboard Marine, supra, 556 F.Supp. at 57. The Price court went on to conclude that the proper standard was strict liability because Congress intended to impose a strict liability standard subject only to the affirmative defenses listed in § 107(b). This conclusion, the Price court noted, is reinforced in that Congress left the "due care" defense³ in the statute, a defense that would be meaningless in the absence of strict liability. This Court is in agreement with the Price court's assertion that the strict liability standard is more consistent with the legislative aims of CERCLA which include goals such as the spreading of costs and the assurance that responsible parties bear the cost of the clean-up. "The fulfillment of these Congressional goals is more likely to be effectuated if the defendants who allegedly contributed to the environmental mess are now held to a very stringent standard of liability. Though strict liability may impose harsh results on certain defendants, it is the most equitable solution in view of the alternative—forcing those who bear no responsibility for causing the damage, the taxpayers, to shoulder the full cost of the clean-up." United States v. Price, supra, at 1114. Accordingly, the defendant generators' motions to dismiss on the ground that the government has failed to allege negligent conduct will be denied.

The generators next contend that joint and several liability is inapplicable in this action, as such liability is not provided for by RCRA, CERCLA or common law. A similar issue was before the District...