United States v. Outboard Marine Corp.

• Decision Date: 08 October 1982
• Docket Number: No. 78 C 1004.,78 C 1004.
• Citation: United States v. Outboard Marine Corp., 556 F.Supp. 54 (N.D. Ill. 1982)
• Parties: UNITED STATES of America, Plaintiff, v. OUTBOARD MARINE CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

556 F. Supp. 54

UNITED STATES of America, Plaintiff, v. OUTBOARD MARINE CORPORATION, et al., Defendants.

No. 78 C 1004.

United States District Court, N.D. Illinois, E.D.

October 8, 1982.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This water pollution suit is before the court on the motion of defendant Outboard Marine Corporation ("OMC") to dismiss Count IV of the Second Amended Complaint. For the reasons stated below, OMC's motion to dismiss is denied.

This suit arises out of OMC's alleged discharges of polychlorinated biphenyls ("PCBs") into navigable waters surrounding OMC's Waukegan, Illinois facility. In Count IV the Government alleges that OMC is the owner of a facility from which a hazardous substance has been or may be released, and that the Environmental Protection Agency ("EPA") has determined that such release creates an imminent and substantial endangerment to public health or welfare or the environment. Based on these allegations the Government seeks injunctive relief under Section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9606(a).

OMC moves to dismiss on the grounds that Section 106(a) is merely jurisdictional, not substantive; that certain administrative prerequisites to action under Section 106(a) have not been carried out; and that the Government does not allege an emergency of the sort to which Section 106(a) is directed.

CERCLA was enacted in 1980 primarily to set up a Superfund for Government responses to hazardous substance releases. Section 104, 42 U.S.C. § 9604, authorizes Government responses to these releases. Section 105, 42 U.S.C. § 9605, calls for revision of the National Contingency Plan originally formulated to guide Government responses under Section 311 of the Clean Water Act, 33 U.S.C. § 1321. Section 107 holds certain parties liable to the Government for reimbursement of its response expenses, and provides for limited liability for damages to natural resources. Section 106(a), under which the Government brings Count IV, reads as follows:

In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

Section 106(b), 42 U.S.C. § 9606(b), authorizes fines for failure to comply with orders issued under § 106(a). Section 106(c), 42 U.S.C. § 9606(c), calls for the establishment of guidelines for the exercise of the imminent hazard authority conferred by Section 106(a) and by other similar statutes.

The United States has directed the court's attention to one recent case interpreting relevant provisions of CERCLA. United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100 (D.Minn.1982). Also, both parties have produced cases construing the similar imminent hazard authority conferred by Section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973. OMC has cited United States v. Midwest Solvent Recovery, Inc., 484 F.Supp. 138 (N.D.Ind.1980), and United States v. Solvents Recovery Services, 496 F.Supp. 1127 (D.Conn.1980), for its argument that Section 106(a) is only jurisdictional in nature. The Government relies on United States v. Diamond Shamrock Corporation, No. C80-1857 (N.D.Ohio, May 29, 1981), which cites United States v. Vertac Chemical Corp., 489 F.Supp. 870 (E.D.Ark.1980), to show that Section 106(a) also is substantive in nature. The lone case construing Section 106(a) itself, Reilly Tar, appears to read Section 106(a) as a substantive statute.

The court understands the distinction between "substantive" and "jurisdictional" to be the distinction between a statute that creates liability and one that authorizes remedies or proceedings but does not create liabilities. Read plainly, Section 106(a) does not appear to create liability in any party. It authorizes lawsuits and injunctions, but it does not indicate who may be sued or enjoined; also, it does not specify what one must do to be subject to suit or injunction. Reilly Tar, treating Section 106(a) as substantive, relies on the statutory reference to "the public interest and the equities of the case" (as well as on some principles of the federal common law of nuisance) in determining the reach of Section 106(a) as a liability-creating provision. 546 F.Supp. at 1113-1114. Solvents Recovery, treating the analogous Section 7003 of RCRA as jurisdictional only, looks to the federal common law of nuisance for standards to be applied in a Section 106(a) action. 496 F.Supp. at 1133-34. Midwest Solvent also looks to common law, though not specifying the federal common law of nuisance. 484 F.Supp. at 143-44. (Solvents Recovery and Midwest Solvent, but not Reilly Tar, were decided before Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) ("Milwaukee II"), declared that the federal common law of nuisance had been preempted in the area of water pollution.)

Although Congress might well have envisioned that Section 106(a) would be applied with reference to the standards of the federal common law — or at least to some aspects of that body of law — the broad pronouncements of Milwaukee II make the court reluctant to read Section 106(a) in this way. OMC, while protesting that Section 106(a) is only jurisdictional, does not direct the court to any substantive body of law to be applied under Section 106(a). The United States, while not suggesting that Section 107 of CERCLA is the sole substantive basis for Section 106(a) actions, does note that OMC appears to be within the class of persons liable under Section 107, which is the central liability-creating provision of CERCLA.

Under Section 107¹, "the owner ... of a facility ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable" for response costs and certain damages. 42 U.S.C. § 9607(a). OMC is the owner of a facility from which there has been a release of a hazardous substance. Because the Government is suing for a cleanup injunction, rather than cleaning up and suing for costs, OMC's release has not generated response costs; if the Government had elected to undertake necessary removal actions and then sued to recover its costs, OMC would fit squarely within this provision.²

This court is hesitant to rely only on "the public interest and the equities of the case" in determining the reach of Section 106(a). Recourse to the federal common law of nuisance seems to be foreclosed by Milwaukee II. On the other hand, Congress included this imminent hazard authority in its CERCLA design, and it should be given effect. Section 107, the main liability-creating provision of CERCLA, indicates that OMC is well within the class of those whom Congress intended to hold responsible under CERCLA. 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.

Section 106(a) does carry certain substantive requirements, however, and it is not questioned that these must be met before relief can issue. Specifically, Section 106(a) authorizes action only when the President has determined "that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." The Second Amended Complaint alleges that authority to make this determination has been delegated and redelegated to the EPA, and that a determination of imminent and substantial endangerment has been made in this case. OMC attacks the method in which this determination has been made, but on a 12(b)(6) motion the Government's allegations must be taken as true.

A related question is whether in fact an imminent and substantial endangerment has been alleged. A strict reading of Section 106(a) might include that the President's — or his delegate's — determination is all that must be alleged, but there must remain in the court some power to determine independently whether Section 106(a) properly may be invoked. The Second Amended Complaint does allege an imminent and substantial endangerment, but only in a most conclusory way. The release of large amounts of PCBs is alleged, but the United States does not allege, for instance, any particular kind of illness or damage that the accumulated PCBs may cause in the near future.

The Government has stressed that the phrase "imminent and substantial endangerment" has been read broadly by courts. In Reilly Tar the court refused to dismiss a Section 106(a) action based on discharges occurring over fifty-five years. The United States had made fairly detailed allegations as to the types of harm which might be caused. 546 F.Supp. at 1105-1106. Cases interpreting Section 7003 of RCRA also have given this language a broad reading. In United States v. Hardage, No. CIV-80-1031-W (W.D.Okla Dec. 2, 1980), the court held this requirement satisfied where released substances posed "a direct, if not immediate, threat to human health and the environment." In United States v. Vertac Chemical Corp., 489 F.Supp. 870 (E.D.Ark. 1980), waste disposal practices...