US v. Hooker Chemicals & Plastics Corp.

• Decision Date: 12 May 1988
• Docket Number: No. Civ-79-990C.,Civ-79-990C.
• Citation: 680 F. Supp. 546
• Parties: UNITED STATES of America; The State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION; Hooker Chemicals Corporation; Occidental Petroleum Investment Company; The City of Niagara Falls, New York; Niagara County Health Department; and The Board of Education of the City of Niagara Falls, Defendants.
• Court: U.S. District Court — Western District of New York

680 F. Supp. 546

UNITED STATES of America; The State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION; Hooker Chemicals Corporation; Occidental Petroleum Investment Company; The City of Niagara Falls, New York; Niagara County Health Department; and The Board of Education of the City of Niagara Falls, Defendants.

No. Civ-79-990C.

United States District Court, W.D. New York.

February 23, 1988.

As Amended May 12, 1988.

COPYRIGHT MATERIAL OMITTED

U.S. Dept. of Justice, Environmental Enforcement Section, Land and Natural Resources Div., (Barry S. Sandals, Bruce S. Gelber, and Leonard H. Shen, of counsel), Washington, D.C., and Robert Abrams, Atty. Gen. of the State of N.Y. (Eugene Martin-Leff, Michael Bryce, Judith Kimmerling, and Edith Holleman, Asst. New York State Attys. Gen., of counsel), New York City, for plaintiffs.

Piper & Marbury (Thomas H. Truitt, and Steven K. Yablonski, of counsel), Washington, D.C., for defendants.

CURTIN, Chief Judge.

Plaintiffs United States of America United States and the State of New York New York now move for partial summary judgment against defendant Occidental Chemical Corporation OCC¹ pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that this defendant is liable under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act CERCLA, 42 U.S. C. § 9607(a) for costs incurred by plaintiffs in their response to conditions at the Love Canal Chemical waste disposal site. The governments contend that the company is strictly liable as a responsible party pursuant to section 107(a)(2)-(4), and that the affirmative defenses asserted by OCC are insufficient to avoid this result in this case. Defendant OCC opposes.

The Statutory Scheme

Congress enacted CERCLA in December 1980 in response to the severe environmental and public health effects posed by the disposal of hazardous wastes.² CERCLA establishes three basic mechanisms to achieve its objectives. First, CERCLA provides the federal government with the necessary authority to respond to hazardous substance sources in an attempt to remove threats to the environment and to public health. Section 104, 42 U.S.C. § 9604. Second, CERCLA creates a fund the so-called "Superfund" to finance federal clean-up and response efforts. See section 517 of Pub.L. 99-499, 26 U.S.C. § 9507 (replacing CERCLA Section 221, 42 U.S.C. § 9631, repealed effective January 1, 1987). Third, CERCLA establishes a liability scheme to insure that those responsible for the release or threatened release of hazardous substances will be made to pay for the response costs and for damage to natural resources. CERCLA Section 107, 42 U.S.C. § 9607.

CERCLA Section 104, 42 U.S.C. § 9604, authorizes the Environmental Protection Agency EPA to take a response action whenever there is a release or threatened release of "hazardous substances" or any other "pollutants or contaminants" into the environment. The "response" actions which are permissible under CERCLA include a broad category of investigative, evaluative, and clean-up activities. Section 101(23)-(25), 42 U.S.C. § 9601(23)-(25).

In order to provide an administrative framework for responses to releases of hazardous substances, Congress mandated that actions be guided by the National Contingency Plan NCP which was originally promulated in 1973 to guide federal government clean-ups under the Clean Water Act, Section 311, 33 U.S.C. § 1321. Congress subsequently directed the EPA to revise the NCP to reflect and effectuate the responsibilities and powers created by CERCLA, Section 105, 42 U.S.C. § 9605. See also 40 C.F.R. § 300.61, et seq.

The liability scheme established by CERCLA Section 107(a) identifies four classes of potentially liable defendants: 1) current owners and operators of hazardous waste facilities; 2) past owners and operators of hazardous waste facilities; 3) persons, usually generators, who arrange for the disposal or treatment of hazardous waste; and 4) transporters of hazardous wastes. Section 107(a)(1)-(4), 42 U.S.C. § 9607(a)(1)-(4). This statutory section also describes the connection these defendants must have to a given waste disposal site in order to be held liable for the response costs resulting from the release or threatened release of hazardous substances from that site. Generally, the governments need not establish causation but need only show a given defendant meets the criteria of a "responsible party" under section 107(a) in order to be held liable under CERCLA. Liability under Section 107(a) is strict, joint, and several against each defendant, absent a showing that a defendant is entitled to one of the three narrow defenses contained in Section 107(b), 42 U.S.C. § 9607(b). The conveyance of property to a third party or "hold harmless" or other such agreements will not relieve a responsible party of liability. Section 107(e)(1), 42 U.S.C. § 9607(e)(1).

The history of the Love Canal is well known and may be summarized as follows. In the 1890s, William Love purchased and excavated the land in which the Love Canal is located as part of a proposed power canal bypassing Niagara Falls. This project was never completed, and the Love Canal was ultimately abandoned. In 1942, however, OCC arranged with the Niagara Power and Development Company for the use of this property for waste disposal purposes commencing that same year. In April of 1947, OCC purchased the Love Canal property and, in April of 1953, deeded the property to the Board of Education of the City of Niagara Falls, New York. The record establishes that, during the approximately 11 years OCC used the property for the disposal of chemicals, it deposited more than 21,000 tons — 42 million pounds — of various wastes into the Love Canal. Included in these wastes were numerous hazardous substances, as defined in section 101(14) of CERCLA, 42 U.S.C. § 9601(14). Hazardous substances were subsequently detected in the surface water, groundwater, soil, the basements of homes, sewers, creeks, and other locations in the area surrounding the Love Canal landfill during the 1970s.

In the late 1970s, the United States commenced the funding of a remedial program for the Love Canal site. In 1982, the United States and New York entered into a cooperative agreement to provide additional remedial and investigatory work there. Based on the above facts, both the United States and New York now contend that they are entitled to partial summary judgment against OCC pursuant to section 107 of CERCLA, 42 U.S.C. § 9607. See Rule 56 of the Federal Rules of Civil Procedure. OCC opposes both of these motions.

Plaintiffs say that OCC is strictly liable under section 107 because it is a "person" who owned or operated a "facility" at which "hazardous substances" were "disposed" and from which there was a "release" or "threatened release" of a "hazardous substance" which caused plaintiffs to incur "response costs," including "removal and remediation action ... not inconsistent with the national contingency plan." See, e.g., United States v. North-eastern Pharm. & Chem. Co. NEPACCO, 579 F.Supp. 823, 850 (W.D.Mo.1984) (citing CERCLA section 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A)), modified in all respects, 810 F.2d 726, 747-48 (8th Cir.1986).

Given the above statutory framework, plaintiffs argue that OCC is liable under CERCLA as an owner and/or operator at the time of the 1942-53 disposal. They claim that OCC meets the definition of "person" contained in CERCLA Section 101(21), 42 U.S.C. § 9601(21) and that the company owned or operated a "facility" within the meaning of CERCLA Section 101(9), 42 U.S.C. § 9601(9). The governments also contend that OCC was the owner and/or operator of the Love Canal facility sufficient to come within the ambit of CERCLA Section 101(20)(A), 42 U.S.C. § 9601(20)(A) and that hazardous substances were deposited at the facility during the time OCC owned and operated it. CERCLA Section 101(29), 42 U.S.C. § 9601(29), citing Section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903; CERCLA Section 101(14), 42 U.S.C. § 9601(14).

The United States further contends that there was a release or threatened release of hazardous substances from the Love Canal landfill. CERCLA Section 101(22), 42 U.S.C. § 9601(22). Finally, the United States argues that it is undisputed that it has incurred removal and remedial costs in responding to the release of hazardous substances from the Love Canal. CERCLA Section 101(23-(25), 42 U.S.C. § 6901(23)-(25).

Plaintiffs also allege that OCC cannot avoid liability under section 107(a) by arguing that the statute cannot be applied against defendants for past acts of disposal. Instead, the governments say that both the legislative history and the case law, as well as the plain language of the statute, make clear that present conditions resulting from past acts come within the ambit of CERCLA Section 107(a)(2). See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976); United States v. NEPACCO, supra, at 810 F.2d pp. 732-34. Plaintiffs also dispute that OCC can properly prevail on any challenge to CERCLA based on the Taking Clause of the Fifth Amendment or Article I's Contract Clause.

Plaintiffs say that they are entitled to recover its "response" costs under Section 101(25) of CERCLA, including those costs incurred prior to the passage of CERCLA and the implementation of all applicable provisions thereof. United States v. Shell Oil, 605 F.Supp. 1064, 1072-79 (D.Col. 1985); United States v. NEPACCO, supra, at 810 F.2d 734-37.

Finally, and most importantly, the governments say that OCC cannot avoid liability under section 107(a)(2)-(4) by claiming a third-party defense under Section 107(b)(3), 42 U.S.C. § 9607(b)(3). This statute says in pertinent part:

There shall be no liability under subsection (a) of this section for a person otherwise liable who can

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