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United States v. Wade

Citation: 14 ELR 20096
No. No. 79-1426, 577 F. Supp. 1326/20 ERC 1277/(E.D. Pa., 12/20/1983) Ruling on liability & causation

The court rules that generator liability under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) can be joint and several and does not require proof that the generator is responsible for the wastes whose release brought CERCLA into play. The court first grants defendants' summary judgment motions on all counts based on restitution. The court then holds that the only showing of causation required to establish generator liability under CERCLA is that the defendants have dumped hazardous substances at the site in question and that such substances are found in the site. While plaintiff's evidence that generator defendants' wastes were dumped in the site is not dispositive, it is sufficient to survive the instant motions for summary judgment. The court rejects defendants' arguments that plaintiff must link its CERCLA § 104 removal costs to the actual wastes of the defendants, or at least to wastes of the type generated by defendants. The language of § 107 requires nothing more than that wastes of the type disposed by defendants be found at a site where a release of any hazardous substance has occurred. Requiring the government to trace wastes released to a specific defendant would eviscerate the statute. The legislative history of CERCLA supports this reading since language clearly requiring the causal nexus urged by defendants was dropped from the bill. In a footnote, the court also rejects defendants' arguments that the government must show that defendants chose the site at which their wastes were disposed.

The court next rules that generator liability under § 107 is not limited to either the amount of money expended by the federal government prior to filing the complaint or to the amounts authorized under § 104. The court leaves open the question of whether § 107 liability applies to costs incurred by the federal government after trial, ruling that the possibility that cleanup costs incurred by the state and by the federal government between filing the lawsuit and trial will push total recoverable response costs above the amount paid by settling generators defeats generators' summary judgment motion on this issue. The court rules that restrictions in § 104 on the use of Superfund monies do not apply to § 107 liability. The language of the two sections makes clear that liability extends to all expenditures not inconsistent with the National Contingency Plan, while government expenditures from the Superfund were to be more tightly controlled to protect the integrity of the fund. The court also rejects defendants' argument that allocating funds paid by settling generators to the state, which was not a party to the settlement, would violate the Pennsylvania Joint Tortfeasor Act by allowing double recovery.

The court rules that CERCLA § 107 imposes joint and several liability where defendants cannot establish a reasonable basis for apportionment. It concludes that in deleting language imposing such liability under all circumstances, Congress only intended to require the allocation of liability under common law principles. The federal common law controls the issue, because of the strong federal interest in hazardous waste cleanup and the need for a uniform national standard. Relying on the decision in United States v. Chem-Dyne Corp., 13 ELR 20986, and the rule in the RESTATEMENT (SECOND) OF TORTS, the court concludes that joint and several liability is appropriate where the injury is indivisible.

The court also rules that a generator's liability under CERCLA is not affected by the concentration of hazardous substances in the waste disposed of in a CERCLA site. CERCLA's definition of hazardous substances, which incorporates substances regulated as toxics under § 307 of the Federal Water Pollution Control Act (FWPCA), does not require that such substances be present in concentrations greater than allowed by FWPCA effluent limitations for them to be hazardous substances under CERCLA.

The court also rules that the president of the corporation that owned the waste disposal site can be personally liable under CERCLA if he participated in the injury-producing act.

[Earlier opinions in this case appear at 12 ELR 21051 and 13 ELR 20815 — Ed.]

Counsel for Plaintiff
Mary L. Walker; Peter F. Vaira Jr., U.S. Attorney
3310 U.S. Cthse., 600 Market St., Philadelphia PA 19106
(215) 597-2556

Stephen D. Ramsey, Martin W. Matzen, Christopher Harris, Wendy B. Jacobs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5271

Counsel for Defendants
Calvin P. Sawyier, Edward J. Wendrow, Sidney Margolis
Winston & Strawn
Suite 5000, First Nat'l Plaza, Chicago IL 60603
(312) 558-5600

James D. Wilder
La Brum & Doak
700 IVB Bldg., 1700 Market St., Philadelphia PA 19103
(215) 561-4400