United States v. Mottolo

• Decision Date: 15 March 1985
• Docket Number: Civ. No. 83-547-D,84-90-D.
• Citation: 605 F. Supp. 898
• Parties: UNITED STATES of America v. Richard MOTTOLO, et al. STATE OF NEW HAMPSHIRE v. Richard MOTTOLO, et al.
• Court: U.S. District Court — District of New Hampshire

605 F. Supp. 898

UNITED STATES of America v. Richard MOTTOLO, et al.

STATE OF NEW HAMPSHIRE v. Richard MOTTOLO, et al.

Civ. Nos. 83-547-D, 84-90-D.

United States District Court, D. New Hampshire.

March 15, 1985.

COPYRIGHT MATERIAL OMITTED

Douglas J. Miller, Asst. U.S. Atty., Concord, N.H., Elizabeth Yu, U.S. Dept. of Justice, Washington, D.C., P. Lynn Peterson, U.S. Environmental Protection Agency, Boston, Mass., for United States.

Peter G. Beeson, Asst. Atty. Gen., Concord, N.H., for State of N.H.

Lynn D. Morse, Exeter, N.H., for Mottolo and Service Plumbing and Draining Co., Inc.

Rodney L. Stark, Manchester, N.H., for K.J. Quinn and Co., Inc.

Claudia C. Damon, Manchester, N.H., for Lewis Chemical Corp., and Sutera.

ORDER

DEVINE, Chief Judge.

These are actions by the United States of America against defendants Richard Mottolo ("Mottolo"), K.J. Quinn and Co., Inc. ("Quinn"), Lewis Chemical Corporation ("Lewis"), Carl Sutera ("Sutera"), and Service Pumping and Drain Company, Inc. ("Service"), and by the State of New Hampshire against defendants Mottolo, Quinn, Lewis, and Sutera under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a), seeking to recover costs incurred in the cleanup of an allegedly hazardous waste site located in Raymond, New Hampshire. The matter comes before the Court on the following motions: (1) defendants' motion to dismiss plaintiff New Hampshire's complaint for failure to comply with the statute of limitations; (2) plaintiff New Hampshire's motion to dismiss defendant Quinn's counterclaim; (3) plaintiff New Hampshire's motion to consolidate United States v. Mottolo, et al, No. 83-547-D (hereinafter "United States v. Mottolo"), with New Hampshire v. Mottolo, No. 84-90-D (hereinafter "New Hampshire v. Mottolo"); (4) plaintiffs New Hampshire's and United States' motions to strike defendant Quinn's demand for jury trial; (5) defendant Sutera's motion for summary judgment against plaintiff New Hampshire; and (6) various motions to compel discovery.

1. Defendants' Motion to Dismiss

In considering the motion to dismiss plaintiff New Hampshire's complaint by defendants Quinn, Lewis, Sutera, and Mottolo in New Hampshire v. Mottolo,¹ the Court follows the well-established rule that all facts are construed in the light most favorable to plaintiff and taken as admitted, with dismissal to be ordered only if plaintiff is not entitled to relief under any set of facts he could prove. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without published opinion, 745 F.2d 43 (1st Cir.1984). Here, defendants argue that New Hampshire's claims are barred by the three-year statute of limitations in section 112 of CERCLA, 42 U.S.C. § 9612(d):

No claim may be presented, nor may an action be commenced for damages under this title, unless that claim is presented or action commenced within three years from the date of discovery of the loss or the date of enactment of this Act December 11, 1980, whichever is later: Provided, however, That the time limitations contained herein shall not begin to run against a minor until he reaches eighteen years of age or a legal representative is duly appointed for him, nor against an incompetent person until his incompetency ends or a legal representative is duly appointed for him.

Defendants assert that since the State of New Hampshire incurred its alleged losses as early as the spring of 1979, the State's February 9, 1984, complaint for reimbursement of clean-up costs is time barred under the three-year statute of limitations in § 9612(d).

The sole issue to be determined on defendants' motion to dismiss is whether the State of New Hampshire's § 9607(a) action for reimbursement of removal, remedial, and response costs incurred at the alleged hazardous waste site in Raymond, New Hampshire, is subject to the three-year statute of limitations in § 9612(d). Defendants urge the Court to construe § 9612(d) as applicable to any type of claim or judicial action brought under CERCLA, whether for damages or for removal, remedial, or response costs (hereinafter "cost reimbursement"). Plaintiff New Hampshire urges the Court to construe this statute more narrowly, so as to apply only to claims against the Hazardous Substance Response Fund (42 U.S.C. §§ 9611-12) and judicial actions for damages to natural resources (42 U.S.C. §§ 9607a4C or 9611b), but not to judicial actions for cost reimbursement (42 U.S.C. § 9607a4A). The United States, appearing as amicus curiae, urges yet a third construction of the statute; the statute of limitations should apply only to Fund claims and judicial actions for damages to natural resources, and not to Fund claims and judicial actions for cost reimbursement.

1.a. Statutory Construction of Section 112(d)

The general rule of statutory construction in questions of federal law is to look first to the language of the statute and then to the legislative history if the statute is unclear. Blum v. Stenson, ___ U.S. ___, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984); Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983). In cases involving statutes of limitation, the rule is that statutes of limitation sought to be applied to bar rights of the Government must receive a strict construction in favor of the Government. Badaracco v. Commissioner of Internal Revenue, 464 U.S. 386, 104 S.Ct. 756, 761, 78 L.Ed.2d 549 (1984). Where, as here, defendants' proposed construction would operate to bar actions for cost reimbursement under CERCLA by the United States and state governments more than three years after cost incurrence, § 9612(d) must be strictly construed in favor of the federal and state governments.

Finally, the remedial intent of CERCLA requires a liberal statutory construction designed to avoid frustration of the Act's purpose. In enacting CERCLA in 1980, Congress sought to provide the federal government immediately with tools necessary for prompt and effective response to the nationwide threat posed by hazardous waste disposal and to impose the costs and responsibility for remedial action upon the persons responsible for the creation of the hazardous waste disposal threat. United States v. Reilly Tar and Chemical Corp., 546 F.Supp. 1100, 1110, 1112 (D.Minn.1982) ("Reilly Tar"). Given the remedial nature of CERCLA, its provisions should be afforded a broad and liberal construction so as to avoid frustration of prompt response efforts or so as to limit the liability of those responsible for clean-up costs beyond the limits expressly provided. Id.

The structure of CERCLA reveals four major categories of provisions: first, definitions (42 U.S.C. § 9601); second, provisions authorizing the United States to investigate and clean up hazardous waste sites (42 U.S.C. §§ 9604-06); third, provisions imposing liability upon responsible parties for costs of response, removal, and remedial actions, for damages to natural resources caused by hazardous waste disposal, as well as for penalties for violations (42 U.S.C. §§ 9607-9610); fourth, provisions concerning the creation, funding, and reimbursement of the Hazardous Substance Response Fund ("the Fund") and the Post-closure Liability Trust Fund, limited funds to be used for the payment of certain types of private and governmental claims for cost reimbursement and natural resources damages caused by hazardous waste disposal (42 U.S.C. §§ 9611-9654).

CERCLA has acquired a well-deserved notoriety for vaguely-drafted provisions and an indefinite, if not contradictory, legislative history. See United States v. Wade, 577 F.Supp. 1326, 1331 (E.D.Pa. 1983); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1142 (E.D. Pa.1982) ("Stepan Chemical"); Reilly Tar, supra, 546 F.Supp. at 1111. The statute was passed hastily by Congress as compromise legislation after very limited debate under a suspension of the rules. See Stepan Chemical supra, 544 F.Supp. at 1142-43; Frank Grad, "A Legislative History of the Comprehensive Environmental Response, Compensation and Liability (`Superfund') Act of 1980", 8 Columbia Journal of Environmental Law No. 1, pp. 1-2 (1982) ("Grad"). Section 9612(d) is a victim of this hasty drafting, its language and legislative history less than a model of clarity. However, the Court concludes that the statute is properly interpreted as imposing a three-year statute of limitations upon all claims against the Fund and also upon judicial actions for damages to natural resources, but not upon judicial actions for reimbursement of removal, remedial, or response costs. Thus, the Court agrees with the proposed construction advocated by the State of New Hampshire, rather than the alternative constructions presented by the United States and defendants.² The New Hampshire construction is one which is both favorable to the Government, avoiding the shorter three-year limitation period, and consistent with the remedial intent of CERCLA, assuring that the Government is free to undertake thorough and cautious action in potentially protracted hazardous waste clean-up operations.

1.b. Statutory Language

Simply put, Congress created a silent exception to CERCLA's three-year statute of limitations by omitting any reference to judicial actions for cost reimbursement in section 112(d), 42 U.S.C. § 9612(d). This construction of § 9612(d), excluding judicial actions for cost reimbursement from the statute of limitations, is to be favored for several reasons; first, it is consistent with the applicable rules of grammar and punctuation; second, it is consistent with the use of the terms "claims", "actions", "damages", and "costs" throughout CERCLA generally and in § 9612 specifically; third, it assures that every portion of § 9612(d) is given meaning and effect; fourth, it is consistent with...