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United States v. Miami Drum Servs., Inc.

Citation: 17 ELR 20539
No. No. 85-0038-Civ-ARONOVITZ, 25 ERC 1469/(S.D. Fla., 12/12/1986)

The court rules on the United States' motion for early determination of special legal questions in its action under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover the costs of cleaning up an abandoned drum recycling facility. The court initially declines to rule on the retroactive applicability of the Superfund Amendments and Reauthorization Act of 1986 (SARA) but adopts SARA as guidance on congressional intent. The court first rules that responsible parties are strictly liable for response costs under CERCLA. The court next adopts the rule in United States v. Chem-Dyne Corp., 13 ELR 20986, that liability under § 107(a) is joint and several unless a defendant can prove that the harm is divisible and there is a reasonable basis for apportioning the harm. The court rejects the ruling by two other district courts that allows courts to apportion damages even if defendants cannot prove the amount they contributed to the harm. The court rules that a right to contribution exists under CERCLA. The addition of an express right to contribution in SARA demonstrates that Congress intended that such a right exist. The court rules that the government need make no showing of causation beyond establishing that defendants fall within one of the four classes of responsible parties in § 107(a). The burden then shifts to defendants to prove that one of the defenses in § 107(b) applies. The court holds that CERCLA may be applied retroactively in this case. Congress intended the Act to apply retroactively. Further, CERCLA is not retroactive in the constitutional sense as applied to the facts of this case since it imposes liability for present conditions, even if stemming from past acts. Even if CERCLA were retroactive in the constitutional sense, the court notes that retroactive application would satisfy substantive due process requirements. The court rules that the government is not required under § 104(a)(1) to give responsible parties the opportunity to clean up the site at their own expense before it undertakes a cleanup. Further, the government's compliance with the duties set out in § 104 is irrelevant for purposes of determining liability under § 107. The court rules that the claims procedures in § 112 do not apply to cost recovery actions brought by the government. Finally, the court rules that the United States is not entitled to a presumption that its cleanup costs are consistent with the National Contingency Plan when it did not perform the cleanup itself, but instead entered into a cooperative agreement under which a county performed the cleanup and was reimbursed by the United States.

Counsel for Plaintiff
William Westerfield
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendants
David Javitz
2020 NE 163 St., Suite 300, N. Miami Beach FL 33162-4970

Joseph Kashi
Conrad, Scherer & James
P.O. Box 14723, Ft. Lauderdale FL 33302
(305) 462-5500