United States v. Shell Oil Co.
| Decision Date | 26 March 1985 |
| Docket Number | Civ. A. No. 83-C-2379. |
| Citation | 605 F. Supp. 1064 |
| Parties | UNITED STATES of America, Plaintiff, v. SHELL OIL COMPANY, Defendant. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
F. Henry Habicht, II, Mary L. Walker, Carol Lynn Green, Robert L. Baker, Mark E. Grummer, Catherine McCabe, Mark P. Fitzsimmons, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for U.S Edward J. McGrath, A. Edgar Benton, Daniel Hoffman, Denver, Colo., for Shell Oil Co.
Robert A. Hykan, Richard L. Griffith, Janice L. Burnett, Asst. Attys. Gen., Natural Resources Section, Denver, Colo., for Colorado.
The United States of America filed this action against the Shell Oil Company under sections 104 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9604 and 9607. The United States seeks to recover costs it has incurred, and will incur, in responding to hazardous waste contamination allegedly caused by the Shell Oil Company at the Rocky Mountain Arsenal near Denver, Colorado. The United States also seeks damages for the injury, destruction or loss of natural resources at the Arsenal. Jurisdiction is founded on 28 U.S.C. § 1331 and 42 U.S.C. § 9613(b).
Before me at this time are four motions filed by Shell: (1) a motion for partial dismissal of the first claim for relief, (2) a motion to join the United States Department of the Army as a defendant, (3) a motion to join the State of Colorado as a plaintiff, and (4) a motion to reconsider my September 14, 1984 denial of Shell's motion to strike from the complaint allegations stating the amounts claimed as damages. The motions have been thoroughly briefed, and oral argument has been heard on the first three. No useful purpose would be served by oral argument on the fourth.
The facts here stated are as the United States has alleged them in the complaint. Familiar law requires that, for purposes of these motions, I must accept as true the facts alleged in the complaint.
The Rocky Mountain Arsenal is located in Adams County, Colorado, approximately ten miles northeast of the center of down-town Denver. It covers approximately twenty-seven square miles. .) The United States has owned the Arsenal property since 1942. .) The United States Department of the Army has used various portions of the Arsenal for the manufacture, testing, demilitarization, disposal and other handling of various chemical agents and munitions. .) Since 1947, the United States has leased certain property within the Arsenal to Shell and its predecessors for the manufacture, packaging and other handling of pesticides, herbicides and other chemicals. (Complaint paras. 13, 14, and 17.)
The Army's wastes and all or some portion of Shell's wastes were disposed of through a common sanitary sewer system and common contaminated waste disposal system built and operated by the Army. .) The waste disposal systems failed and released into the environment hazardous substances comprised of commingled wastes generated by the Army, Shell and other Arsenal tenants. .) The released chemicals have killed migratory and other birds, fish and wildlife, have contaminated air, land, ground water, lakes and other surface waters within the Arsenal, and have contaminated or threaten to contaminate the environment outside the Arsenal. .)
In 1975, the State of Colorado issued administrative orders to the Army and Shell directing them to cease and desist certain discharges of chemicals, to clean up all sources of certain chemicals, and to undertake a ground water monitoring program. .)
In 1975, the Army commenced investigation and testing to determine the existence, extent and sources of contamination at the Arsenal. .) At that time the Army also commenced response action to prevent or control migration of chemicals off the Arsenal property and to prevent exposure of the public to chemicals. (Id.)
In 1982, the Army, the United States Environmental Protection Agency, the State of Colorado and Shell entered into a Memorandum of Agreement regarding removal, remedial and other response actions taken or planned by the Army. .)
As of December 1, 1983, the Army had incurred expenses of approximately $48,000,000 in responding to releases or threatened releases of hazardous chemicals at the Arsenal.
The Army has been developing a comprehensive response plan for cleanup of the arsenal. In its January 1984 Draft Decontamination Assessment for Land and Facilities at the Rocky Mountain Arsenal, the Rocky Mountain Arsenal Contamination Control Program Management Team outlined four alternative cleanup programs, with costs ranging from $210,000,000 to $1,860,000,000. The Army has proposed to implement option one, costing approximately $360,000,000, but no plan has been finally approved. (October 23, 1984 letter from F. Henry Habicht II, Assistant Attorney General, Land and Natural Resources Division, Department of Justice.)
CERCLA was enacted on December 11, 1980 to establish a comprehensive response and liability mechanism to control and clean up releases into the environment of hazardous substances, and to provide compensation for costs incurred in responding to the releases and for damage to natural resources. A brief synopsis of CERCLA provisions referred to in this opinion and order will be helpful in understanding the order.
Section 104, 42 U.S.C. § 9604, provides for government response to the release of a hazardous substance. Section 105, 42 U.S.C. § 9605, directs the President to revise the National Oil and Hazardous Substances Pollution Contingency Plan, originally prepared under the Federal Water Pollution Control Act, 33 U.S.C. § 1321, to effectuate the new responsibilities and powers created by CERCLA.
Under § 106, 42 U.S.C. § 9606, the President is authorized to commence an enforcement action to abate an actual or threatened release of a hazardous substance when there may be an imminent and substantial endangerment to the public health or welfare, or to the environment. Section 107, 42 U.S.C. § 9607, provides for liability of certain responsible parties for costs incurred in responding to releases of hazardous substances and for injury to natural resources.
Section 221, 42 U.S.C. § 9631, establishes a $1.6 billion fund, commonly known as the "Superfund," to be used to remedy or prevent releases or threatened releases of hazardous substances into the environment. Section 111, 42 U.S.C. § 9611, governs uses of the Fund and § 112, 42 U.S.C. § 9612, sets forth the procedure for making claims against the Fund.
In its first claim for relief, the United States alleges, among other things, that Shell is liable under CERCLA § 107, 42 U.S.C. § 9607, for all or a substantial portion of the response costs (totalling approximately $47,800,000) incurred by the United States in responding to releases of Shell chemicals at the Rocky Mountain Arsenal. .) This figure includes response costs incurred before the effective date of the Act, December 11, 1980. Shell has moved, pursuant to Rule 12(b)(6), Fed. R.Civ.P., to dismiss this first claim for relief to the extent that it seeks recovery for response costs incurred by the Army prior to December 11, 1980.
Shell argues that CERCLA does not apply retroactively to authorize recovery of response costs incurred before enactment of CERCLA. Three district courts that have addressed this issue have reached results supporting Shell's position. United States v. Northeastern Pharmaceutical and Chemical Co., 579 F.Supp. 823, 841-843 (W.D.Mo.1984); United States v. Wade, 20 E.R.C. 1849, 1850-51 (E.D.Pa. March 23, 1984); United States v. Morton-Thiokol, Inc., No. 83-4787 (D.N.J. July 2, 1984). Neither the Supreme Court nor any other federal appellate court has addressed this retroactivity issue. Therefore, it is necessary to examine CERCLA's language and legislative history to determine whether the result reached in the three cited district court cases comports with the intent of Congress.
My analysis must begin by acknowledging the presumption against retroactive application of statutes. See 2 J. Sutherland, Statutes and Statutory Construction § 41.04 (4th ed. 1973). In United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 413, 74 L.Ed.2d 235 (1982), the Supreme Court reaffirmed that "a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be `the unequivocal and inflexible import of the terms, and the manifest intention of the legislature'" (quoting Union Pacific R. Company v. Laramie Stock Yards Company, 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913)). Thus the first step must be scrutiny of the statutory language to determine whether Congress, in CERCLA, has overridden the usual presumption against retroactive application. Only if a statute is unclear may a court turn to legislative history for guidance in interpreting it. See State of Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1308-09 (N.D. Ohio 1983).
The following language of CERCLA's liability section, § 107(a), 42 U.S.C. § 9607(a), is here at issue:
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