Walls v. Waste Resource Corp.

• Decision Date: 21 July 1987
• Docket Number: No. 86-5589,86-5589
• Citation: 823 F.2d 977
• Parties: , 56 USLW 2114, 17 Envtl. L. Rep. 20,954 Linda WALLS, et al., Plaintiffs-Appellants, v. WASTE RESOURCE CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 977

823 F.2d 977

26 ERC 1311, 56 USLW 2114, 17 Envtl.

L. Rep. 20,954

Linda WALLS, et al., Plaintiffs-Appellants, v. WASTE RESOURCE CORPORATION, et al., Defendants-Appellees.

No. 86-5589.

United States Court of Appeals Sixth Circuit.

Argued April 17, 1987.

Decided July 21, 1987.

Allan Kanner (argued), Arnold Levin, Philadelphia, Pa., John T. Milburn Rogers, Greeneville, Tenn., J.D. Lee, Linda Walls, et al., Knoxville, Tenn., for plaintiffs-appellants.

James W. Gentry, Jr. (argued), Chattanooga, Tenn., for Velsicol Chem.

Fred H. Cagle, Jr., Wheeler A. Rosenbalm, Knoxville, Tenn., for Alladin, G.E.

Allan Hull, Cleveland, Ohio, for Greif Bros.

Richard T. Sowell, Baker, Worthington, Crossley, Stansberry & Woolf, Wanda G. Sobieski (argued), Knoxville, Tenn., for Waste Resources Corp.--appellee.

Shelton B. Hillman, Jr., Bristol, Tenn., for Beecham, Inc./Orkin Exterminating Co.

Jack B. Draper, Knoxville, Tenn., for Allied Corp. and American Cynamid Co.

William Wright Petty, John T. O'Connor, II, Knoxville, Tenn., for Waste Management, Inc.

William T. Wray, Jr., Hunter, Smith & Davis, Edwin L. Treadway, Gregory K. Haden, Kingsport, Tenn., for Waste Resources of Tennessee.

James H. Epps, III, Johnson City, Tenn., for Texas Instruments Inc.

Thomas C. McKee, Johnson City, Tenn., for Burton Rubber, IPC Dennison, Int. Play Card, Hayes-Albion.

Keith McCord, Knoxville, Tenn., for Rohm and Hass Tennessee, Inc.

N.R. Coleman, Jr., Greeneville, Tenn., Carey S. Sheldon, Ashtabula, Ohio, for Ball Corp. & Columbus McKinnon Corp.

W. Gregory Miller, Corneluis & Collins, Nashville, Tenn., for TRW, Inc.

R. Hunter Cagle, Knoxville, Tenn., for Hoover Universal, Inc.

Richard M. Currie, Jr., Wilson, Worley, Gamble & Ward, P.C., Kingsport, Tenn., for Kingsport Press, Inc.

John S. Bingham, Kingsport, Tenn., for Gary Phillips.

Daniel W. Hammer, Cleveland, Ohio, for Norandex, Inc.

Steven M. Jawetz, Dept. of Justice, Land and Nat. Resources Div., Charles J. Sheehan (argued), Washington, D.C., for amicus curiae, U.S.

Before MERRITT and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.

MERRITT, Circuit Judge.

In this appeal arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601, et seq., we consider whether the 60-day notice provision in Sec. 9612(a) applies to private actions for the recovery of response costs under Sec. 9607(a). The District Court held that the 60-day provision does apply to Sec. 9607(a) actions and dismissed the case for lack of subject matter jurisdiction. ¹ For the reasons set forth below, we reverse the judgment of the District Court.

In this case involving statutory construction, we begin our analysis with the statutory language itself. We deal with three sections of CERCLA: Sec. 9607 which is the liability provision of CERCLA; Sec. 9611 which authorizes a variety of uses of Superfund monies; and Sec. 9612 entitled "Claims Procedure" outlining the procedures a person must follow when making a claim against the Fund. (These are sections 107, 111, and 112 of CERCLA, respectively.)

This case requires us to consider the interrelationship, if any, between Sec. 9612(a) and Sec. 9607(a). Section 9612(a) provides as follows:

All claims which may be asserted against the Fund pursuant to section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 9607 of this title. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor, or other person or to present the claim to the Fund for payment.

The liability section, Sec. 9607(a), provides in relevant part:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section--

* * *

* * *

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, 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--

* * *

* * *

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan....

On the face of the statute, there is an apparent conflict as to whether the 60-day notice requirement of Sec. 9612(a) applies to Sec. 9607(a) actions. The first sentence in Sec. 9612(a) seems to indicate that the notice requirement does not apply to Sec. 9607(a) when it states that "[a]ll claims which may be asserted against the Fund pursuant to Sec. 9611 of this title shall be presented in the first instance to the owner...." (emphasis added). Moreover, read in isolation, the prefatory language of Sec. 9607(a)--"Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section"--appears to sever any link between Secs. 9607(a) and 9612(a).

On the other hand, the second sentence of Sec. 9612(a) raises some question as to whether the two sections are indeed connected: "In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor, or other person or to present the claim to the Fund for payment." (emphasis added).

Unfortunately, as the above provisions demonstrate, the "plain language" of the applicable sections of CERCLA is not so plain at all but rather shrouded in considerable ambiguity. We can render the statute less ambiguous, however, by closely examining the first sentence of Sec. 9612(a). While any construction of the statute is not free from doubt, we embrace the reasonable and intelligent construction recently adopted by the First Circuit in Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074 (1st Cir.1986), the first circuit court decision to consider this question. For a similar resolution of this issue, see also Idaho v. Howmet Turbine Component Co., 814 F.2d 1376 (9th Cir.1987).

One issue raised by the first sentence of Sec. 9612(a) concerns the scope of the statutory language "all claims which may be asserted against the Fund." The question is whether the claims procedures embodied in Sec. 9612(a) are limited to those claims presented against the Fund, as plaintiffs argue, or also reaches all CERCLA claims including private actions for recovery of response costs, as defendants argue. Parsing the first sentence of Sec. 9612(a), the Dedham Court makes a compelling argument that the language "all claims which may be asserted against the Fund" refers only to claims against the Superfund, not private actions for recovery of response costs. The Dedham Court states:

Because section 112(a) refers exclusively to section 111 claims, it differs fundamentally from section 112(d), which explicitly applies not only to "claims," but also to judicial actions for damages commenced under section 107(a)(2)(c). Because of this distinction, we need not read the "all claims" language of section 112(a) as necessarily referring to the private judicial actions contemplated by section 107.

805 F.2d at 1079.

The second issue raised by the first sentence of Sec. 9612 concerns the use of the word "may" in the phrase "all claims which may be asserted against the Fund." Defendants contend that it means that "all claims which may be asserted against the Fund must be presented in the first instance to potential defendants." Brief of Appellees at 9. Plaintiffs maintain, on the other hand, that "the reference in section 9612(a) ... does not refer to all cases which may be brought under section 9607(a)(4)(b)." Brief of Appellants at 20.

The Dedham Court properly construes the use of the word "may" in the first sentence of Sec. 9612(a) as follows:

... we are persuaded that "the word 'may' refers not to the possibility of a claim against the Fund, but rather, refers to claims which are allowed to be made against the Fund by virtue of Section 111."

805 F.2d at 1079 (citation omitted). The First Circuit correctly and sensibly noted that "[i]f Congress had intended the sixty-day requirement to apply to Section 107 causes of action, it very easily could have included in the first sentence after 'pursuant to section 111,' the clarifying phrase, 'or section 107.' " Id. at 1080 (citation omitted).

We believe this statutory interpretation is reinforced by the purpose of CERCLA itself. While "the legislative history of CERCLA is vague, reflecting the compromise nature of the legislation enacted," Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), it is clear that Congress was serving a two-fold purpose in enacting CERCLA. As the court observed in United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112 (D.Minn.1982):

A review of the statute and the Committee Reports reveals at least two Congressional concerns that survived the final amendments to the Act. First, Congress intended that the federal government be immediately given the tools necessary for a prompt and effective response to problems of national magnitude resulting from hazardous waste disposal. Second, Congress intended that those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created.

This two-fold purpose of CERCLA is reflected in the statute's bifurcated scheme. On the one hand, CERCLA created a Hazardous Substance Response Trust Fund, or Superfund, 42 U.S.C. Sec. 9631, which provides money which the federal government is authorized to spend on dump site...