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United States v. South Carolina Recycling & Disposal, Inc.

Citation: 14 ELR 20272
No. No. 80-1274-6, 653 F. Supp. 984/20 ERC 1753/(D.S.C., 02/23/1984) Ruling on generator liability

The court rules that hazardous substance generators and the owner of the Bluff Road waste disposal site are jointly and severally liable for removal costs under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first rules that CERCLA § 107 imposes strict liability, subject to limited, enumerated defenses. The court next rules that CERCLA § 107 does not require a direct causal connection between a generator's substances and the costs. The statute requires nothing more than that the generator shipped hazardous substances to the site, that substances of that type are present at the site, that there has been a release or threatened release of any hazardous substance from the site, and that reimbursableresponse costs have been incurred as a result of the release. Section 107(b) gives defendants an opportunity to rebut the presumption that their wastes contributed to the hazardous conditions at the site by demonstrating that those conditions are the sole result of others' actions. The court rules that under the undisputed facts of the case, each of the generator defendants is liable under § 107. Defendant owners of the site likewise are liable and cannot avoid liability by claiming that the damages were caused solely by unrelated third parties, since landowners are contractually related to the operators of the site. The court declines to grant summary judgment against a lessee of a portion of the site because of a factual dispute over whether the lessee was involved in any way with hazardous waste disposal.

The court next rules that defendant generators and owners are jointly and severally liable. Adopting the analysis and standard of United States v. Chem-Dyne Corp., 13 ELR 20986, the court finds that CERCLA imposes joint and several liability when several defendants have contributed to an indivisible injury. The court also rules that the injury at the Bluff Road site was indivisible. The court rejects defendant's argument that the volume of wastes contributed by the individual defendants provides a reasonable basis for dividing the injury, again relying on Chem-Dyne, though volume might be considered as a means of apportioning damages in a later action for contribution.

Turning to defendants' constitutional claims, the court first rules that CERCLA does not violate the Contract Clause, which by its terms applies to state not federal legislation, and in any event is not implicated here since the contracts remain valid and enforceable. The court next rules that CERCLA is not unconstitutionally retroactive. CERCLA is not retroactive in that it addresses present conditions, albeit ones caused by past actions. This decision avoids the constitutional issue and thus is favored, but in any event CERCLA would not violate due process even if retroactive, because the retroactivity would be rationally related to a valid congressional purpose. Finally, the court rules that defendants' claim that the action is untimely because it sought recovery for response costs not yet incurred is moot, because cleanup of the site has been completed. Alternatively, the court observes that CERCLA does not require the government to incur all response costs before seeking recovery under § 107.

Counsel for Plaintiff
Quentin C. Pair, Scott Fulton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1999

Meg Slocum, Ass't U.S. Attorney
P.O. Box 2266, Columbia SC 29202
(803) 765-5483

Counsel for Plaintiff-Intervenor
Travis Medlock, Attorney General; Walton J. McLeod III, Dennis N. Cannon Jr.
2600 Bull St., Columbia SC 29206
(803) 758-3970

Counsel for Defendants
D. Reece Williams III
Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford
P.O. Box 944, Columbia SC 29202
(803) 779-8900

Isadore S. Bernstein
Hammer & Bernstein
1019 Assembly St., Columbia SC 29201
(803) 799-8600

Robert W. Dibble
McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble
P.O. Box 11390, Columbia SC 29211
(803) 799-9800