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United States v. A&F Materials Co.

Citation: 14 ELR 20105
No. No. 83-3123, 578 F. Supp. 1249/20 ERC 1353/(S.D. Ill., 01/20/1984) Ruling on generator liability

The court rules that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can impose joint and several liability; that § 106 of CERCLA allows mandatory injunctive relief against off-site generators, but that § 311 of the Federal Water Pollution Control Act (FWPCA) and § 7003 of the Resource Conservation and Recovery Act (RCRA) do not; and that the government may maintain a CERCLA § 104 cost-recovery claim after incurring only a portion of the cleanup costs. The court first rules that CERCLA allows imposition of joint and several liability. The language and legislative history of the Act indicate that Congress intended the courts to determine liability in accordance with principles developed under § 311 of the FWPCA and the common law. The court finds that a uniform federal rule is necessary. It rules that the court may impose joint and several liability where generator defendants fail to establish a reasonable basis for apportionment, but adds that the court may apportion liability itself on the basis of several factors if necessary to preserve equity.

The court also rules that § 106 of CERCLA subjects off-site waste generators to mandatory injunctive relief, but that § 7003 of RCRA and § 311 of the FWPCA do not. The language and legislative history of CERCLA § 106 support the conclusion that it authorizes mandatory injunctions against generators at inactive sites. On the other hand, the government presented no support for its claim of generator liability under § 311 of the FWPCA, and the legislative history of RCRA § 7003 and Congress' subsequent enactment of CERCLA to fill gaps in RCRA demonstrate that off-site generators are not subject to injunctive relief under RCRA.

The court next rules that the government may sue to recover cleanup costs under § 104 of CERCLA after incurring only a portion of the total costs. This result is consistent with precedent. The court also rules that the government need only allege that its costs are consistent with the National Contingency Plan to sustain the § 104 claim in its complaint.

The court holds that off-site generators are not liable for hazardous waste pollution under paragraph 1012(a) of the Illinois Environmental Protection Act. Illinois courts have universally required a stronger connection between a defendant and the pollution before imposing liability under the state law.

The court rules that since joint and several liability applies, plaintiffs' failure to include all possible waste generators or disposers connected with the site does not require dismissal under FED. R. CIV. P. 19 for the absence of indispensable parties. Finally, the court rejects one defendant's motion to dismiss, ruling that the complaint alleges a sufficient nexus between that defendant's disposal of sulfuric acid at the site and the release of hazardous substances, and that including the defendant in the complaint despite its limited connection is neither scandalous nor prejudicial.

Counsel for Plaintiffs
Robert L. Simpkins, Ass't U.S. Attorney
750 Missouri Ave., E. St. Louis IL 62201
(618) 274-2200 ext. 361

Robert I. Vanheuvelen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3332

Vincent W. Moreth; Neil F. Hartigan, Attorney General
500 S. 2nd St., Springfield IL 62706
(217) 783-9031

Counsel for Defendants
Kenneth C. Ault
Rural Rte. No. 2, Box 217, Greenup IL 62428
(217) 923-3495

William H. Hoagland
Hoagland, Maucker, Bernard & Almeter
401 Alton St., P.O. Box 130, Alton IL 62002
(618) 465-7745

Richard O. Hart
Hart & Hart
602 W. Public Sq., Benton IL 62812
(618) 435-8123