Conservation Chemical: Generator Liability for Imminent Hazards on the Docket

Phillip D. Reed

Editors' Summary: One of the most hotly debated issues in environmental law in the last several years has been the nature of the liability of hazardous waste generators under the imminent hazard provisions of RCRA and CERCLA. The federal government has maintained that those who produced the wastes now leaking out of old, unsafe chemical dumps are subject to strict and joint and several liability for abatement action under RCRA § 7003 and CERCLA § 106. Industry has argued that placing such a heavy burden on non-negligent companies that had no control over the disposal methods of the dump operators violates Congress' intent, as well as basic principles of the common law and the U.S. Constitution. New the argument is moving from conference halls to the courts. In one pending imminent hazard case against a group of waste generators, United States v. Conservation Chemical Co., the contending positions have been spelled out in detail in memoranda on defendants' motion to dismiss. The author reviews the positions of the two sides in Conservation Chemical. He concludes that while the government has made a strong case in support of its claim of strict and joint and several liability as a general matter, the possibility of apportioning the damage on the basis of the individual generators' shares of the wastes stands in the way of imposing joint and several liability on these defendants.

[13 ELR 10208]

The federal government and major producers of chemical wastes are waging a legal battle over the responsibility for making old waste dumps safe. The combatants have exchanged long memoranda in cases named, ironically, for the waste disposal companies (Chem-Dyne and Conservation Chemical) whose inability to safely bury the defendants' hazardous wastes triggered the current conflict. The central issues are whether a company that exercised due care in arranging for the disposal of its chemical wastes, can nonetheless be responsible for the entire burden of rendering the waste site benign.

Whether hazardous waste generators face "strict" and "joint and several" liability for cleaning up inactive chemical dumps was intensely debated, but not clearly resolved, when Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ in haste at the end of a session in 1980. Now the question of the scope of generator liability is being confronted again as a result of motions in two pending lawsuits, United States v. Conservation Chemical Co.² and United States v. Chem-Dyne Corp.³ The government sued under its imminent hazard authority, § 106 of CERCLA⁴ and § 7003 of the Resource Conservation and Recovery Act (RCRA),⁵ to force waste generators to abate pollution from the chemical dumps, as an alternative to government response action under CERCLA § 104.⁶ While the courts may not immediately address all the generator liability issues raised in these pending cases, the memoranda filed in Conservation Chemical, the broader of the two, provide the first authoritative look at the complete arguments on generator liability.⁷

Although arguably drafted as emergency provisions, the imminent hazard sections of RCRA and CERCLA have become a major force in the federal government's hazardous waste cleanup program. The administrative control programs, RCRA's "cradle-to-grave" regulatory system and CERCLA's federal cleanup financed by the "Superfund" and cost recovery actions, are not up to the [13 ELR 10209] task of abating existing pollution from inactive waste sites. RCRA regulates prospectively; wastes already abandoned in makeshift graves are beyond the scope of its regulatory programs⁸ and it took six years to begin to bring the full ongoing waste cycle under RCRA's control.⁹ Inactive sites escape regulation and operating sites have only recently begun to be brought into compliance with federal safety standards. The Superfund, on the other hand, which provides a revolving fund to finance federal cleanup of the most dangerous chemical dumps, is too small to handle the many thousands that have been discovered and has proved cumbersome to use even for the few hundred federal priority sites.¹⁰

Out of necessity, the federal government pressed the imminent hazard provisions of RCRA and CERCLA into service, first RCRA § 7003 and then CERCLA § 106. Legal battle ensued over the extent of the government's power and the scope of generator liability under the two provisions, but the decisions to date have been limited in scope to preliminary issues such as whether the imminent hazard provisions apply to inactive dumps¹¹ and whether generators are liable at all.¹² In Conservation Chemical, however, the issue of the scope and measure of generator liability has been pushed to the forefront by the litigants since it is central to the prosecution and defense of imminent hazard actions.¹³

The case concerns a hazardous waste disposal site near the Missouri River in Kansas City, Missouri which was in operation from 1960 to 1979. The site allegedly is poorly lined, allowing hazardous wastes to leach out into the groundwater and ultimately into the Missouri. In 1980 the government sued the owner-operator of the site, Conservation Chemical Co., its president, and a sister corporation. However, defendants demonstrated their inability to fund cleanup and generators of wastes sent to the site declined an invitation to abate the pollution voluntarily.¹⁴ The government filed a second complaint, adding four companies alleged to have generated some of the waste deposited at the site: Armco, Inc.; FMC Corp. (FMC); International Business Machines Corp. (IBM); and Western Electric Co. The site was not on the National Priority List and the government did not use its CERCLA § 104 fund-financed cleanup authority.¹⁵ Rather, the suit seeks an injunction for cleanup under RCRA § 7003 and CERCLA § 106. The government also seeks to recover its investigatory costs under CERCLA § 107, RCRA, and the common law.¹⁶ The memoranda concerning defendants' motion to dismiss in Conservation Chemical raise a wide array of issues,¹⁷ but those attracting the greatest interest concern generator liability.

Neither RCRA § 7003 nor CERCLA § 106 clearly establishes the extent of generator liability. The search for the meaning of the rather general terms used in the two sections leads through tangled legislative history, the interpretation of other statutes, and into the common law. The RCRA imminent hazard provision empowers the United States to petition the district courts to compel "any person contributing to" the management of toxic waste which is causing an imminent hazard to public health or the environment to stop the improper management or "to take such other action as may be necessary." The language of CERCLA § 106 is even less precise, authorizing the United States to secure such relief from the courts as may be necessary to abate a threat to the public health [13 ELR 10210] or environment caused by a release or threatened release of hazardous substances. The CERCLA provision does not indicate any limitation on the persons liable or suggest the standard by which their liability shall be measured.

The United States has read this general language in light of standards in a related statute and the common law to impose a heavy burden of liability on waste generators, liability without fault that also is joint and several. The generators respond that the government has vastly overreached its statutory authority. They try to limit their liability to reimbursement under CERCLA § 107 of government response costs incurred under CERCLA § 104. The conflict centers on two issues: whether a generator can be liable absent fault, and, if so, whether that liability is limited to the damages that generator's wastes actually caused or is joint and several — for the entire injury.

Do the Imminent Hazard Provisions Apply to Non-negligent Generators?¹⁸

Strict liability is now widely applied in tort law to shift losses to these who, though without fault, are better able to bear the burden than the equally innocent victims.¹⁹ For example, in spite of the exercise of due care, one carrying on "ultrahazardous" or "abnormally dangerous" activities is held liable for injuries resulting from those activities in order to internalize the cost of exposing society to such risks.²⁰ Strict liability is a critical issue in imminent hazard cases. With very little information available on most past chemical waste dumping, the need to prove generator negligence would severely hamper the government's ability to clean up the hundreds, perhaps thousands, of inactive sites posing active threats to public health or the environment. On the other hand, strict liability makes the corporate good citizen, who spent money to find and deal with reputable waste transporters or disposers, as liable as those directly responsible for the unsafe disposal of the wastes. In practical terms, the good citizen is more likely to be held liable, since it is more likely to have left a paper trail connecting it to a given dump and to have the "deep pocket" needed to finance remedial action.

Defendants in Conservation Chemical argue that Congress did not intend to apply the imminent hazard provisions of RCRA and CERCLA to generators at all, and certainly not where the generators were without fault. Had Congress intended to stretch long-established principles of liability and fairness so far, it would have done so expressly, FMC contends. It reads the two provisions in light of common law principles requiring causation²¹ and culpability before liability arises. FMC leans heavily on the district court decision in United States v. Wade,²² which held that neither imminent hazard provision applies to non-negligent generators.²³ The Wade court relied on the absence of the term "generator" in § 7003 or § 106, concluding that if Congress had intended to impose liability on such a potentially large group, it would have done so expressly. It relied on legislative history indicating that negligence was a requisite of § 7003 liability.²⁴ The Wade court construed § 106 as authorizing injunctive relief to stop actions producing endangerments. Since past generators could not be enjoined to stop any action, they could not have been within the scope of § 106.

FMC also contends that the standard under CERCLA § 107, which arguably also governs § 106, is not necessarily one of strict liability. Congress deleted a provision establishing a strict liability standard for § 107,²⁵ referring instead to the liability standard under § 311 of the Federal Water Pollution Control Act (FWPCA).²⁶ Section 311, FMC argues, does not impose strict liability on generators of spilled material and Congress did not intend to establish such a standard with the reference in § 107.

The government methodically and at great length rebuts the FMC arguments. It contends that §§ 106 and 7003 clearly apply to generators.The broad terms used in both statutes to delineate those liable, and the need for an expansive interpretation to serve the vital protective function of the imminent hazard provisions demonstrate that Congress intended to make generators liable.²⁷ That generators are expressly governed by the main provisions of both statutes, RCRA Subtitle C²⁸ and CERCLA § 107, strengthens the argument,²⁹ as does post hoc legislative history.³⁰ That a generator no longer sends wastes to a leaking site does not absolve it of liability, continues the [13 ELR 10211] argument.³¹ And the government insists that both statutes unambiguously establish strict liability. Had Congress intended a negligence standard, it would have used language concerning fault.³² The government memorandum goes on to argue that the fragment of contradictory legislative history relied on by defendants and the court in Wade is offset by conflicting history from the House and cannot erase the clear statutory message.³³ Finally the government argues that other courts have disagreed with Wade,³⁴ a decision under review by the Third Circuit Court of Appeals.³⁵

The answer to whether non-negligent generators are liable under the imminent hazard provisions of RCRA and CERCLA is not clear. There is some merit on both sides of the arguments presented in Conservation Chemical. The ambiguity aside, however, the argument for strict liability for generators clearly is much stronger under CERCLA § 106. The government's reading of RCRA § 7003 is expansive, particularly in that it would make generators strictly liable for a category of problems for which the primary regulatory provisions ofthe Act do not impose liability. While the language "any person" on its face includes generators, it is less obvious that a non-negligent generator "contributes to" the endangerment. Since the non-negligent generator's contribution to the endangerment is weak in terms of causation, the court might well require a stronger contribution in fault. Where the only legislative history is post hoc and conflicting, it is difficult to find congressional intent to impose much broader liability on generators in the imminent hazard provision than in the rest of the statute. Such intent might, however, be drawn out of the urgency of the mission of § 7003 and the common law imposition of strict liability for ultrahazardous activities.

Under CERCLA § 106, however, the case for liability for careful generators is much stronger. Their liability would be no different from that imposed in the primary sections of the statute, whose legislative history supports the imposition of strict liability. Turning to the public policy reasons for imposing strict liability, they tend to favor extending it to hazardous waste generators, but not unequivocally. On one hand, waste generators do profit from businesses which create hazards, and as against the innocent public are better situated to bear the losses virtually certain to result.³⁶ On the other hand, the balance shifts somewhat when the retroactive nature of the liability is considered. At the time the waste disposal now of concern in cases like Conservation Chemical took place, it arguably was not known to be a necessarily hazardous activity. Generators did not take steps to offset the added risks inherent in strict liability then and cannot do so retroactively. The availability of the Superfund to finance federal responses to hazardous waste threats would further cut against strict liability for generators, because it would change the choice of loss-bearers from generator versus public to generator versus government (funded in part by industry), but the fund is only large enough to handle a fraction of the dangerous disposal sites. In conclusion, the court in Conservation Chemical might not impose strict liability on generators, but the weight of arguments seems to favor imposition of liability without fault, especially under CERCLA.

Do RCRA and CERCLA Impose Joint and Several Liability?

The United States argues in Conservation Chemical that defendants' liability for both response costs and abatement under both RCRA and CERCLA is not only strict, but joint and several. This issue, which has been argued in the press and on the conference circuit, but not yet in court, makes Conservation Chemical a main event for both the government and hazardous waste generators.³⁷

Joint and several liability is an increasingly common resolution to a set of problems raised when traditional tort principles are applied to cases involving multiple defendants. It combines concepts of joint liability, where several actors together are liable for a single injury, and entire liability, where an actor responsible for only part of the causation of a harm is liable alone for the entire damages.³⁸ Applied under CERCLA § 106 to a group of hazardous waste generators, joint and several liability could make one generator responsible for the entire cleanup of a disposal site found to create an imminent hazard.The unlucky generator might, however, be entitled to "contribution" from other joint tortfeasors, in which case it could implead or join them into the CERCLA action, if they can be found and are solvent.³⁹ Thus, joint and several liability is a heavy burden though it can be argued that it only transfers from the plaintiff to the defendant the task of demonstrating the individual liability of each member of a group of responsible parties.⁴⁰

[13 ELR 10212]

Joint and several liability arises under the common law in several situations. A group of individuals acting in concert to commit a tort or failing to perform a common duty are jointly liable.⁴¹ A relationship between two individuals strong enough to create vicarious liability (e.g. master-servant) also can produce joint and several liability.⁴² Courts have extended the doctrine to cases where individuals acting independently produce an indivisible injury, essentially for the public policy reason that it is unfair to give the victimized plaintiff the difficult burden of proving each defendant's share of the injury.⁴³

The defendants in Conservation Chemical vigorously resist imposition of joint and several liability and insist that liability be apportioned. IBM leads the defendants on this point, perhaps because equitable arguments against joint and several liability are strongest for that defendant, which apparently contributed less than one-quarter of one per cent of the waste at the site.⁴⁴ The IBM Memorandum takes the position that the government's motive in favoring joint and several liability is economic. The company argues that the United States' desire to impose joint and several liability is nothing more than a means of bringing in deep pocket defendants to ensure that there will be sufficient private sector resources to pay for the necessary cleanup, thus saving Superfund monies.⁴⁵ Whatever the government's motive, it seems clear that imposition of joint and several liability on a defendant in IBM's position would greatly enhance the potential effectiveness of the cleanup and reimbursement authority of RCRA⁴⁶ and CERCLA. Waste generators may be judgment proof and their precise contributions to a dump are often unknown. Joint and several liability shifts this burden from the government or potential pollution victims to the generators.

Deciding whether a court may impose joint and several liability under CERCLA involves unraveling a tangle of hasty statutory drafting, ambiguous legislative history, common law principles that vary from state to state, and constitutional questions. Woven into the knot are five issues: (1) Does CERCLA preclude imposition of joint and several liability, or does it allow a court to impose such liability in individual cases under § 311 of the FWPCA or the common law? (2) If § 311 is a reference point, what standard of liability does it impose? (3) If the common law governs, where does one look for the appropriate rule and what is it? (4) If the operative common law rule allows joint and several laibility where the harm is indivisible, does the possibility of estimating the volume of waste sent to a hazardous waste site by identified generators make the resulting pollution injury divisible? And, finally, (5) would the imposition of joint and several liability raise equal protection, taking, or due process questions of such magnitude as to force an alternative interpretation to avoid the constitutional issues? Each of these questions has been analyzed at length in memoranda filed in Conservation Chemical and the stage is set for a well-informed judicial treatment of at least several strands of the problem.

Does CERCLA Preclude Joint and Several Liability?

Whether Congress intended to preclude imposition of joint and several liability under CERCLA turns on why Congress dropped language establishing joint and several liability from both the House and Senate bills. There is no dispute on the point that the omission was intentional and sealed the compromise through which thebill was passed.⁴⁷ IBM argues that Congress intended to bar imposition of the heavy burden of joint and several liability. Otherwise it would have made the standard explicit.⁴⁸ References to § 311 of the FWPCA that the government argues were to create a joint and several liability standard actually address strict liability.⁴⁹ IBM also cites other provisions in the Act as inconsistent with such liability;⁵⁰ as well as statements in the legislative history by Senator Stafford that the language was dropped because it was too controversial,⁵¹ and by Senator Helms that deletion meant preclusion.⁵²

The United States counters that by deleting the language Congress only eliminated mandatory imposition of joint and several liability, but that Congress still intended courts to use that standard when it would be appropriate under § 311 of the FWPCA or the common law.⁵³ The government argues principally that legislative history supporting its view is stronger than that favoring the opposition. Senators Stafford and Randolph and Representative Florio, floor sponsors of CERCLA, indicated in introducing the compromise bill on the floor that liability [13 ELR 10213] was to be determined case by case with reference to § 311 and the common law. These statements are authoritative since there was no conference report accompanying the bill, while the remarks of Senator Helms, an opponent of the legislation, should be given little weight.⁵⁴

The government's view that Congress intended to use § 311 to help define liability for abatement action under § 106 and reimbursement of costs under § 107 stems in large part from the definition of "liability" in the statute and the remarks in the legislative history. There can be no doubt that § 311 is a reference for liability under § 107 since the statute expressly defines "liability," the title of § 107, with reference to § 311.⁵⁵ The question is whether § 311 also is intended to apply to § 106.⁵⁶

How Does § 311 Define Liability Under CERCLA?

Assuming that § 311 is to be used in interpreting §§ 106 and 107, what standard of liability does it impose?⁵⁷ The government asserts that, although the FWPCA is silent on the subject, the courts have found that strict and joint and several liability is the rule under both § 311(g), governing sole-cause third party vessels, and § 311(f), governing the liability of the owner and operator of the discharging vessel itself where the injury is indivisible.⁵⁸ As noted above,⁵⁹ IBM argues that the reference to § 311 only concerns whether liability is strict — "[t]here is no 'previous statutory law' imposing any liability, much less joint and several liability, on offsite generators."⁶⁰

What Liability Would Relevant Common Law Impose?

Unfortunately, a decision that the common law should provide the answer to a case-by-case analysis of the measure of liability under CERCLA does not produce an immediate answer for Conservation Chemical. Common law principles governing this issue are not uniform. Thus, IBM argues that the court either should apply the law of the state in which the site is located, Missouri, or should adopt Missouri law as the federal rule for reasons of equity.⁶¹ The Missouri rule in river pollution and flood cases, those IBM argues are most analogous to hazardous waste cases, is apportioned liability.⁶² The company goes on to argue that the result would not differ under any other common law rule. Even those jurisdictions allowing joint and several liability where the injury is indivisible would not find it applicable in hazardous waste cases like Conservation Chemical, because there is a reasonable basis for apportioning injury — the relative volumes of waste contributed to the site by the generators.⁶³ This, IBM points out, is the very measure used by the government in negotiating settlements at other sites.⁶⁴ IBM also argues that it would be excused from liability under the common law because its contribution was so small that it did not cross the threshhold of being a "substantial factor" in bringing about the harm.⁶⁵ IBM concludes that imposition of joint and several liability not only would be counter to established principles of common law but also would be grossly unfair, since IBM could be held liable for the entire cleanup even though the company contributed less than one percent of the wastes at the site.⁶⁶

The government, of course, takes a different view of the common law. It begins by arguing that a uniform federal rule of decision is essential to avoid state-to-state diversity in the application of the federal statute.⁶⁷ The government argues that the appropriate federal rule should be the "modern" one allowing joint and several liability where the harm is indivisible, even in the absence of concert of action by the multiple defendants⁶⁸ The United States' memorandum reviews a long list of jurisdictions that have shifted to the joint and several rule, many in [13 ELR 10214] cases involving pollution problems analogous to that in Conservation Chemical.⁶⁹ It then notes that the question of whether the injury at the Conservation Chemical site is indivisible is one of fact and cannot be decided on a motion to dismiss.⁷⁰ Finally, the government argues that imposition of joint and several liability will serve the public interest and the remedial purposes of CERCLA, speeding cleanup of sites and saving the government the nearly impossible job of apportioning liability before responsibility to pay for cleanup attaches.⁷¹ The availability of contribution from other responsible parties who can be joined or impleaded protects IBM and named defendants from paying a disproportionate share of the cleanup costs, the government position concludes.⁷²

Do Lurking Constitutional Questions Bar Interpreting CERCLA To Impose Joint and Several Liability?

In the last section of its memorandum on joint and several liability, IBM expands its equitable arguments against such liability into several constitutional claims. The company argues that the government's failure to develop a classification scheme that would treat IBM, a minimal contributor to the site, differently from Armco, Inc., which was responsible for three-quarters of the waste, raises equal protection concerns.⁷³ Second, the fact that joint and several liability would enable the government to subject de minimis contributors to liability for the entire cleanup of sites raises serious taking issues.⁷⁴ Third, imposition of the heavy burden of joint and several liability on past, off-site, non-negligent generators would be retroactive in violation of the Due Process Clause.⁷⁵ IBM does not ask the court to decide any of these claims now, but argues that it has demonstrated constitutional infirmities of sufficient gravity to require the court to interpret CERCLA in a way which will avoid the issues, that is, as precluding joint and several liability.

The government counters that in seeking to impose joint and several liability only where the injury is indivisible, it has already avoided all of IBM's constitutional worries. The government's exercise of its prosecutorial discretion not to sue all potential defendants in Conservation Chemical does not rise to the level of a classification for equal protection purposes.⁷⁶ IBM is fully able to protect itself from any discriminatory effect by joining or impleading other responsible parties. Likewide, imposition of joint and several liability, subject to contribution, for helping cause an indivisible injury cannot be a taking.⁷⁷ The government is merely carrying out the established principles of law on responsibility for harms created by one's actions. Finally, the government argues that CERCLA is not retroactive because it addresses present conditions, albeit ones created by past acts.⁷⁸ Moreover, if the statute were found to be retroactive, it still would be consistent with due process standards.⁷⁹

The weight of the arguments presented on joint and several liability in Conservation Chemical tends to favor the government on all but the divisibility of the injury. The legislative history strongly supports the notion that Congress did not intend to preclude joint and several liability when it deleted joint and several liability provisions. The provisions deleted arguably would have gone beyond the principles of liability in the evolving common law.⁸⁰ The strongest basis for rejecting this argument might be a conclusion that the legislative history on liability applies only to § 107, while a "limited" emergency provision like § 106 should be confined to a narrower standard. However, since a generator sued unsuccessfully today under § 106 might eventually become liable under § 107, the effort to insulate § 106 from the § 107 standard seems forced.

If the court follows the government's invitation to find the § 106 measure of liability under FWPCA § 311, it will find strong support for imposing joint and several liability. The reasoning in a case imposing joint and several liability under the FWPCA applies very well to the situation in hazardous waste cases.⁸¹ Likewise, if the court looks for the answer in the common law, it is likely to conclude that joint and several liability for indivisible injuries is the rule. The trend in state pollution court decisions is definitely in that direction, the Missouri rule notwithstanding.⁸²

Unfortunately for defendants, the court might well [13 ELR 10215] come this far and go no farther, for the one remaining issue is the one on which their arguments against joint and several liability is strongest. The government has not demonstrated that the injury in Conservation Chemical is indivisible. Courts have held the share-of-waste criterion cited by defendants adequate to apportion liability in the past, and favored such rough apportionment where possible.⁸³ The government may need to demonstrate that the law no longer favors apportionment in hazardous waste cases because of the compelling public policy arguments for making those who profited by the activities producing the waste rather than the general public bear the burden of proving apportionment. However, these issues are unlikely to surface at this stage of the Conservation Chemical litigation. As the government noted, divisibility of the harm raises questions of fact, and the court may well decline to address it on a motion to dismiss.

The case brings the policy issues on generator liability into focus. The site owners and operators are insolvent. Absent government or generator funding, the pollution will not be abated. The government might clean up the site using Superfund money, but would have difficulty recovering from the generators, since the site is not on the National Priority List.⁸⁴ While it is possible to estimate the volume of waste sent to the site by each of the defendants, the accuracy of those figures is uncertain. Identifying all significant contributing generators and their shares of the wastes in the site to a reasonable certainty may be a big job for either the government or defendants. If the court rules that generator liability is joint and several, there will be enough money to clean up the site, but one or more of the defendants are likely to have to pay a larger share of the cleanup cost than their share of the pollution. If liability must be apportioned by the government, it is unlikely that it will be able to compel payment of the full abatement cost. The stakes are substantial and the law is not clear.

Conclusion

The federal government's strategy to use its imminent hazard authority aggressively to force waste generators to clean up chemical dumps not slated for response action under the Superfund is facing its most complete test in Conservation Chemical. While it is not certain that the court will rule on all of the questions,⁸⁵ the parties have thoroughly analyzed the issues of strict and joint and several liability for waste generators. It is only a matter of time before decisions are forthcoming on the government's legal stategy for placing on generators most of the burden for hazardous waste cleanup.

1. 42 U.S.C. § 9601, ELR STAT. 41941.

2. No. C-1-82-840, ELR PEND. LIT. 65763 (S.D. Ohio, complaint filed Aug. 26, 1982).

3. No. 82-0983-CV-W-5, ELR PEND. LIT. 65785 (W.D. Mo., complaint filed Nov. 22, 1982). See also U.S. v. Stringfellow, No. 90-11-2-24, ELR PEND. LIT. 65786 (C.D. Cal., complaint filed Apr. 21, 1983), in whichthe complaint also alleges that generators are jointly and severally liable under CERCLA § 106.

4. 42 U.S.C. § 9606, ELR STAT. 41947.

5. 42 U.S.C. § 6973, ELR STAT. 41922.

6. 42 U.S.C. § 9604, ELR STAT. 41945.

7. Chem-Dyne involves a motion for partial summary judgment solely on the issue of joint and several liability. Defendants' motion to dismiss in Conservation Chemical raises a host of liability and other issues. See Memorandum of Defendant FMC Corporation in Support of Motion to Dismiss on Ground that Assertion of Retroactive Liability in this Case Would Violate Constitutional Limitations on Retroactive Causes of Action and Violate Constitutional Prohibitions Against Impairment of Contracts Based on Pre-Existing Law, U.S. v. Conservation Chemical Co., No. 82-0983-CV-W-5, ELR PEND. LIT. 65785 (W.D. Mo., filed Feb. 22, 1983) (hereinafter cited as FMC Retroactivity Memo); Memorandum in Support of Defendant FMC's Motion to Dismiss Plaintiff's Complaint, U.S. v. Conservation Chemical Co., No. 82-0983-CV-W-5, ELR PEND. LIT. 65785 (W.D. Mo., filed Feb. 22, 1983) (hereinafter cited as FMC Memo on Dismissal); Memorandum in Support of Defendant International Business Machines Corporation's Motion to Dismiss, U.S. v. Conservation Chemical Co., No. 82-0983-CV-W-5, ELR PEND. LIT. 65785 (W.D. Mo., filed Jan. 31, 1983) (hereinafter cited as IBM Memo); United States Response in Opposition to Defendants' Motion to Dismiss, U.S. v. Conservation Chemical Co., No. 82-0983-CV-W-5, ELR PEND. LIT. 65785 (W.D. Mo., filed May 2, 1983) (hereinafter cited as U.S. Memo). In addition, defendants Armco, Inc. and Western Electric Co. filed memoranda in support of the motion to dismiss. Plaintiff's Response to Defendants' Joint Motion for Partial Summary Judgment on the Issue of Joint and Several Liability, U.S. v. Chem-Dyne Corp., No. C-1-82-840, ELR PEND. LIT. 65787 (S.D. Ohio, filed May 2, 1983) covers essentially the same ground as the United States' memo in Conservation Chemical.

8. See Comment, The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed, 9 ELR 10060, 10065 (1979).

9. See Bromm, EPA's New Land Disposal Standards, 12 ELR 15027 (1982) for a description of the most recent major RCRA regulations. See also J. QUARLES, FEDERAL REGULATION OF HAZARDOUS WASTES: A GUIDE TO RCRA (1983).

10. See Oversight of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund): Hearing before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess. 143-44 (1982) (statement of Khristine Hall, Environmental Defense Fund). See also U.S. Memo, supra note 7, at 128.

11. See, e.g., U.S. v. Solvents Recovery Service of New England, 496 F. Supp. 1127, 10 ELR 20796 (D. Conn. 1980); U.S. v. Waste Industries, 556 F. Supp. 1301, 13 ELR 20826 (E.D.N.C. Dec. 30, 1982).

12. See U.S. v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982); U.S. v. Hardage, 13 ELR 20188 (W.D. Okla. Sept. 29, 1982).

13. See IBM Memo, supra note 7, at 6:

Although this issue may appear at first blush to be directed to the appropriate reief to be granted in this case, and therefore inappropriate for decision at this early stage of the litigation, in fact the question of the availability of joint and several liability can, and must, be decided now. First, its resolution is central to a decision on IBM's motion to dismiss. The government's assertion of joint and several liability is an explicit and critical element of the claims for relief in the Complaint, so that, if joint and several liability is unavailable, the government has failed to state a claim upon which relief can be granted. In addition, early resolution of the joint and several liability question will fundamentally affect the litigation strategies of all parties to this law suit. A decision on this central issue at the threshold stage of the litigation will lead to substantial savings in time and resources, both for the parties and for the Court. Finally, there is no bar to deciding the joint and several liability issue in the context of this motion: a decision requires only examination of the government's complaint, the applicable law, and the exhibits attached hereto.

14. See U.S. Memo, supra note 7, at 22, 25-26.

15. 47 Fed. Reg. 58476 (Dec. 30, 1982) See also, U.S. Memo, supra note 7, at 129 n.*.

16. 42 U.S.C. § 9607, ELR STAT. 41947.

17. Defendants argue that the government failed to make out a case of an endangerment as required by the imminent hazard provisions. FMC Memo on Dismissal, supra note 7, at 18. The government rejects defendants' claim that the imminent hazard provisions require evidence of immediate harm, U.S. Memo, supra note 78 at 106. Defendants also argue that RCRA § 7003 does not apply to inactive sites, relying on U.S. v. Waste Industries, 556 F. Supp. 1301, 13 ELR 20286 (E.D.N.C. 1982), while the government counters with the arguments that were successful in five earlier decisions addressing this issue. See Comment, RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After U.S. v. Waste Industries, 13 ELR 10074 (Mar. 1983). The government's appeal of Waste Industries is pending in the Fourth Circuit. The government's brief was filed in May 1983 and appellee's brief in June, ELR PEND. LIT. 65788. In addition, defendants claim that the government could have cleaned up the site under § 104 and sought reimbursement under § 107, and that § 106 is available only where the cleanup, reimbursement mechanism is not. FMC Memo on Dismissal, supra note 7, at 13, 30. The government rejects defendants' claims that CERCLA §§ 104 and 107 are the sole available remedies or that they are an adequate remedy at law. The government also argues that the fund-financed cleanup alternative clearly is inadequate to pay for needed action even at the few hundred sites on the National Priority List, much less the thousands of other sites that may pose serious problems. U.S. Memo, supra note 7, at 119. Another issue of considerable practical importance is whether the government can recover investigatory costs incurred at the Conservation Chemical site immediately and without carrying out the CERCLA §§ 104/107 cleanup/reimbursement procedure. FMC Memo on Dismissal, supra note 7, at 24, 26, 30; U.S. Memo, supra note 7, at 135, 141.

18. In the following discussion, the term "generator" refers to "off-site" generators, that is generators which are not owners or operators of the disposal site as well.

19. See generally, W. PROSSER, LAW OF TORTS 492-540, (4th ed. 1971) (hereinafter cited as PROSSER).

20. Id. at 505.

21. FMC Memo on Dismissal, supra note 7, at 40.

22. 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982).

23. See FMC Memo on Dismissal, supra note 7, at 52-55.

24. Id. at 54. The memorandum cites a passage in the legislative history of 1979 amendments to RCRA which stated that a generator could be liable under § 7003 "where the generator had knowledge of the illicit disposal or failed to exercise due care in selecting or instructing the entity actually conducting the disposal." S. REP. NO. 172, 96th Cong., 1st Sess. 5 (1979).

25. FMC Memo on Dismissal, supra note 7, at 56.

26. 33 U.S.C. § 1321, ELR STAT. 42132.

27. That Congress has consistently [in the imminent hazard provisions of federal pollution control statutes] kept the possibilities for obtaining relief as broad as possible is consistent with the purpose of the imminent hazard provisions. In cases where there may exist endangerments to the public health and welfare and the environment, the ability of the government to obtain necessary relief from the endangerment must remain as unfettered as possible.

U.S. Memo, supra note 7, at 65-66.

28. 42 U.S.C. §§ 6921-6934, ELR STAT. 41908-13.

29. U.S. Memo, supra note 5, at 68. The government argues that the Wade court wrongly concluded that because RCRA Subtitle C does not imose requirements on generators with regard to dump sites, that § 7003 does not either. It contends that the "repeated references" to generators in Subtitle C indicates Congress' intent that they be included in the class of persons "contributing to" endangerments at disposal sites. Under CERCLA, there is no question that generators are covered by the § 107 liability provisions and the government argues that § 106 has the same scope. Id. at 89.

30. "The legislative history of CERCLA confirms that generators may be held liable under Section 106(a)." Id. at 91. The memorandum quotes extensively from a Senate Environment and Public Works Committee report stating that CERCLA was intended to force generators to internalize the costs of improper disposal of their wastes. Id. at 91-92.

31. Id. at 76, 97.

32. Id. at 79, 101.

33. Id. at 81, 82.

34. The government cites U.S. v. Hardage, 13 ELR 20188 (W.D. Okla. Sept. 29, 1982) as a counterweight to Wade's holding on § 7003. Hardage held that a strict liability standard applies because of the language of the statute and the hazardous nature of the activity involved. U.S. Memo, supra note 7, at 80. The government also cites City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 12 ELR 20915 (E.D. Pa. 1982) for the proposition, contrary to the d holding in Wade, that CERCLA incorporates a strict liability standard from § 311 of the FWPCA. U.S. Memo, supra note 5, at 102.

35. The government filed its brief in Wade on January 11, 1983. Appellees and amicus curiae Chemical Manufacturers Association filed briefs the following month. ELR PEND. LIT. 65783.

36. One court has ruled that strict liability is appropriate because of the hazardous nature of waste disposal. See supra note 34.

37. The U.S. Memo, supra note 7, devotes 52 pages to the issue of joint and several liability. The IBM Memo, supra note 7, is but seven pages shorter.

38. See PROSSER, supra note 19, at 291-99, 313-15. For general discussions of joint and several liability for hazardous waste pollution, see Rodburg, Joint and Several Liability in Hazardous Waste Litigation, 13 CHEM. & RADIATION WASTE LITIG. REP. 469 (1982); Comment, Joint and Several Liability for Hazardous Waste Releases Under Superfund, 68 VA. L. REV. 1157 (1982); Comment, Joint and Several Liability under Superfund, 13 LOY. U. CHI. L.J. 489 (1982); and Comment, The Comprehensive Environmental Response, Compensation and Liability Act of 1980: Is Joint and Several Liability the Answer to Superfund?, 18 NEW ENG. L. REV. 109 (1982).

39. The common law barred contribution between joint tortfeasors once one discharged the claim of the injured party, but statutes or changed common law rules now allow contribution in the majority of United States jurisdictions. PROSSER, supra note 19, at 306-07. The government sets the number of contribution jurisdictions at 39. U.S. Memo, supra note 7, at 172.

40. PROSSER, supra note 19, at 320.

41. Id. at 291.

42. Id.

43. See, e.g., Landers v. East Texas Salt Water Disposal Co., 248 S.W.2d. 731 (Tex. 1952).

44. IBM Memo, supra note 7, at 6.

45. Id. at 4-5.

46. While the government claimed joint and several liability for response costs and abatement action under RCRA § 7003, the question of the measure of the liability under that statute is largely eclipsed by the question of whether there is liability at all. IBM responded to the complaint with the arguments that RCRA does not authorize collection of response costs from responsible parties, and does not make non-negligent, past, off-site generators liable for abatement actions at all. IBM Memo, supra note 7, at 25. It dismissed the possibility of joint and several liability in a sentence stating that nothing in RCRA or its legislative history provides any basis for imposition of such liability. The government memorandum in response addresses the issue of joint and several liability under RCRA in a footnote stating that the arguments concerning CERCLA apply to RCRA as well. U.S. Memo, supra note 7, at 195 n.**.

47. U.S. Memo, supra note 7, at 149.

48. IBM Memo, supra note 7, at 9.

49. Id. at 9, 10:

Remarks by Senator Randolph, a chief sponsor of the compromise Superfund bill that was ultimately enacted, suggest that the reference to Section 311 was intended to apply only to the question of whether the standard of liability under Superfund would be governed by concepts of fault (e.g., a negligence standard as opposed to strict liability) — a wholly different question from whether liability would be joint and several as opposed to apportioned.

50. IBM argues that a private party partially responsible for cleanup of a site could recover cleanup costs expended in excess of its responsible share pursuant to § 111(a)(2) of CERCLA, an illogical result if such parties were jointly and severally liable for the entire cleanup cost. Id. at 10.

51. Id. at 13.

52. Id. at 14.

53. U.S. Memo, supra note 7, at 149-58. "The CERCLA sponsors made clear that the incorporation of the Section 311 standard was intended to encompass joint and several liability." Id. at 152.

54. IBM's reliance on Senator Helms rather than the CERCLA sponsors as the source of a persuasive gloss on the legislation turns established canons of statutory construction on their head. There is certainly no doubt that Senator Helms took the same view that defendants now ask this Court to adopt in arguing that the Congress was rejecting the principle of joint and several liability in all cases by eliminating the term. However, Senator Helms was a vigorous opponent of the bill in all its forms and voted against it…. The law is clear that the views of the opponent of a bill as to its meaning are entitled to little if any weight, especially when the views of the bill's sponsors are directly to the contrary.

Id. at 158 (citations omitted).

55. CERCLA § 101(32), 42 U.S.C. § 9601(32), ELR STAT. 41944.

56. As the government argues, the definition in § 101(32) applies to all of Subchapter I, which includes both §§ 106 and 107. U.S. Memo, supra note 7, at 146. However, § 106 does not use the term defined in § 101(32) — "liable" or "liability." Nevertheless, the court will find no other definition of "liability" as that term is used in applying § 106, so the government's argument has some merit.

57. The legislative history cited by the government, which directs attention to § 311 and the common law for reference as to the standard of liability under CERCLA, does not explain the relationship between the two tests.

58. There can be no doubt that liability for oil spill cleanup costs is joint and several pursuant to FWPCA. Section 311(f) of the statute, 33 U.S.C. § 1321(f), imposes strict liability for such costs upon the owner of a discharging vessel and upon the operator of the vessel, unless the discharge was caused solely by a third party. If there was such a sole-cause third party vessel, then subsection (g), 33 U.S.C. § 1321(g), imposes strict liability for cleanup costs on both the owner and operator of that vessel. The Court of Appeals for the Fifth Circuit has squarely ruled that, under subsection (g), the liability of the owner and operator is not only strict, but also joint and several. United States v. M/V Big Sam, 681 F.2d 432, 439 (5th Cir.), on petitions for rehearing and suggestion for rehearing en banc, 693 F.2d 451 (5th Cir. 1982). In cases where the discharging vessel does not have the sole-cause third-party defense, the liability imposed upon the owner and operator of the discharging vessel by subsection (f) is similarly joint and several as well as strict. United States v. Hollywood Marine, Inc., 519 F. Supp. 688, 692 (S.D. Tex. 1981).

U.S. Memo, supra note 7, at 162-63 (citation omitted).

59. See supra note 49, and accompanying text.

60. IBM Memo, supra note 7, at 15-16.

61. Id. at 16.

62. Id. at 17-20.

63. Id. at 21-23.

64. Id. at 23.

65. Id.

66. Id. at 24.

67. The government notes that the law of Missouri's neighbor, Kansas, would impose joint and several liability, creating an incentive "for generators of hazardous waste to arrange for its disposal in Missouri rather than in neighboring states applying the stricter law, like Kansas. That is a result that Congress clearly intended to avoid." U.S. Memo, supra note 7, at 169. The government also cites cases holding that a uniform federal rule of decision is necessary where the statute does not prescribe one. Id. at 171.

68. Id.

69. Id. at 173-81. The most recent cases cited are State v. Schenectady Chemicals, Inc., 13 ELR 20550 (N.Y. Sup. Ct. Feb. 18, 1983), in which the court held that liability of those contributing to a nuisance by separately polluting groundwater with chemical wastes is joint and several, id. at 180, and City of Perth Amboy v. Madison Industries, 13 ELR 20554 (N.J. Super. Ct. App. Div. Apr. 21, 1983), in which the court held two polluters of groundwater jointly and severally liable even though the injury was divisible, because the remedy was indivisible. Id. at 188.

70. Id. at 183.

71. Id. at 189-95.

72. Id. at 226.

73. IBM Memo, supra note 7, at 31.

74. Id. at 33.

75. Id. at 38. See also FMC Retroactivity Memo, supra note 7.

76. U.S. Memo, supra note 7, at 219.

77. Id. at 223.

78. Id. at 203.

79. Id. at 205. See also Ohio ex rel. Brown v. Georgeoff, 13 ELR 20457 (S.D. Ohio May 3, 1983), in which the court held that CERCLA § 107(a) is retroactive, but does not violate due process.

80. See, e.g., H.R. 7020, 96th Cong., 2d Sess., reprinted in 3 SUPERFUND: A LEGISLATIVE HISTORY (H. Cohn Needham & M. Menefee, eds. 1982), which provided for joint and several and strict liability, but also provided specific, limited grounds for apportionment.

81. In United States v. M/V Big Sam, 681 F.2d 432, 12 ELR 20994 (5th Cir. 1982) the Fifth Circuit imposed joint and several liability under § 311(g). That section makes the "owner or operator" of a nondischarging third-party vessel liable for cleanup costs. The court found joint and several liability. It relied first on a statutory definition under which "owner or operator" refers to both parties. More important, it concluded that since joint and several liability is consistent with the intent of the FWPCA to "provide an effective remedy through strict liability for recovering cleanup costs from oil spills, it would seem that this construction is more consistent with the legislative purpose than one that would permit an offending vessel or its owners to insulate themselves from liability through a bareboat charter to, as here, an impecunious and uninsured charterer." 681 F.2d at 439, 12 ELR at 20997. The court thus ruled that the statutory purpose to ensure the cleanup of spilled oil is enough to make liable one who did nothing more than provide the instrumentality that later caused the harm. The situation is highly analogous to that in the CERCLA imminent hazard cases.

82. While the defendants cite a number of jurisdictions rejecting joint and several liability, they all have carried the standard forward from the distant past. As the government memorandum indicates, the number of jurisdictions adapting the joint and several rule has increased significantly in recent years.

83. See PROSSER, supra note 19, at 314.

84. CERCLA § 107(a) only makes generators liable for costs not inconsistent with the national contingency plan, which includes the priority list.

85. As of late June 1983 no oral argument had been scheduled in Conservation Chemical. Phone interview with Kenneth Josephson, Assistant United States Attorney, Kansas City, Missouri (June 24, 1983). It is possible that the case will be settled, or that the judge will decline to rule on some or all the issues at this preliminary stage of the litigation.