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

No. 80-1274-6 (D.S.C. February 23, 1984)

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

[14 ELR 20273]

Simons, J.:

Order

Introduction

This action was instituted by plaintiff United States pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, to recover costs of removing hazardous substances from the surface of the Bluff Road site, a hazardous waste site located near Columbia, South Carolina. Named as defendants in this action are four hazardous waste "generators," the two owners of the Bluff Road property, a lessee of at least a portion of the site, and the site operator.

Plaintiff United States has filed for partial summary judgment on the issue of each defendant's joint and several liability for costs incurred in responding to the hazardous conditions posed by the site. The generator defendants have likewise filed motions for summary judgment against plaintiff, as has Columbia Organic Chemical Company ("COCC"), a lessee of at least a portion of the site.¹

The Federal Rules of Civil Procedure provide, in pertinent part, that summary judgment

shall be rendered forthwith if in the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c). The Rules also allow that summary judgment "may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." Id. While "any doubt as to the existence of genuine issue of fact is to be resolved against the moving party," Wessinger v. Southern Ry. Co., Inc., 438 F. Supp. 1256, 1259 (D.S.C. 1977), the function of Rule 5 is not to preserve purely speculative issues of fact for trial. Atlantic States Construction Co. v. Robert E. Lee & Co., 406 F.2d 827 (4th Cir. 1969). "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see if there is a genuine need for trial." Id. at 829. Furthermore, summary judgment is not to be denied merely because the pleadings create the appearance of a dispute. Watson v. Southern Ry. Co., 420 F. Supp. 483 (D.S.C. 1975), aff'd, 542 F.2d 1170 (4th Cir. 1976). Rather, "if in essence there is no real dispute as to the salient facts," the goal of the court is

to smoke out if there is any case, i.e., any genuine issue as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.

Bland v. Norfolk & Southern Ry. Co., 406 F.2d 863, 866 (4th Cir. 1969).

Reviewing the record in a light most favorable to the parties opposing the various motions, this court concludes that there are no material issues of fact in dispute other than the nature of COCC's business activities and the terms of its lease of the Bluff Road site. Thus, based on the undisputed facts, the court determines that the summary judgment motions of the defendants should be denied. The court further concludes that summary judgment should be granted in favor of the plaintiff against all defendants except COCC on the issue of those defendants' joint and several liability under CERCLA for costs incurred by the government in cleaning up the surface of the Bluff Road site.

The Undisputed Facts

The undisputed facts established in the record can be summarized as follows. In 1972, Max G. Gergel, President of COCC, negotiated a verbal lease of at least a part of the Bluff Road site, a four acre piece property located along Bluff Road near Columbia, South Carolina, on behalf of COCC with the property owners, Oscar Seidenberg ("Seidenberg") and Harvey Hutchison ("Hutchison"). COCC purportedly planned to use its leasehold for storage of raw chemicals and materials used in its manufacturing processes. COCC continued to lease at least a part of the property from the owners unil 1978.

In late 1973 or early 1974, several individuals associated with COCC — James Q. A. McClure, Max Gergel, and Henry Tischler — began storing hazardous wastes, including hazardous substances, at the Bluff Road site as part of a waste brokering and recycling operation. In 1976, the three individuals incorporated South Carolina Recycling and Disposal, Inc. ("SCRDI") and thereafter continued hazardous waste operations at the site under auspices of the corporation. SCRDI occupied part of the site from the years 1976 to 1978, and it assumed the verbal lease in 1978.

During the course of operations at the site by SCRDI and its predecessors, an environmental hazard of staggering proportions [14 ELR 20274] developed. Some 7,200 fifty-five gallon drums of hazardous substances, including materials which are toxic, carcinogenic, mutagenic, explosive, and highly flammable, accumulated at the site.The drums were randomly and haphazardly stacked upon one another without regard to their source or the compatibility of the substances within. Many drums deteriorated to the point that their hazardous contents were leaking and oozing onto the ground and onto other drums. The exposure of these substances to the elements, as well as to other substances with which they comingled, caused a number of fires and explosions and generated noxious and toxic fumes.

Given the extremity of conditions at the site, the United States Environmental Protection Agency ("EPA") determined that the Storage and disposal of hazardous substances there had resulted in releases and threatened releases of hazardous substances into the environment. EPA endeavored to remedy the hazardous conditions. An agreement was reached with twelve waste generators and one transporter associated with the site to perform 75% of the surface removal work at the site. The South Carolina Department of Health and Environmental Control ("DHEC") and several agencies of the federal government, also generators of some of the wastes at the Bluff Road site, have agreed as well to contribute funds to remedial activities at the site. Money from the Hazardous Substance Response Trust Fund established under CERCLA was used to finance the cleanup of the remaining 25% of the site's surface. Plaintiff seeks to recover costs associated with the second phase of the cleanup in this action.

The generator defendants — AquAir Corporation ("AquAir"), Allied Corporation ("Allied"), Monsanto Company ("Monsanto"), and EM Industries, Inc. ("EM") — are companies that arranged with SCRDI and its predecessors for treatment or disposal of hazardous substances. Drums belonging to each of these defendants were observed at the site during and before cleanup of the site. Moreover, hazardous substances of the same type found in each of these defendant's wastes were identified in samples taken at the site during cleanup operations.

Defendants' Liability Under CERCLA § 107

In Section 107(a)(1)-(4) of CERCLA, 42 U.S.C. § 9607(a)(1)-(4), Congress established a liability classification scheme which identifies four classes of defendants and describes the connection to a given waste site necessary for each to be held liable for response costs resulting from the release or threat of release of hazardous substances at the site. Once the requisite nexus is established, each class is strictly liable² unless they can prove that, under the defenses enumerated in CERCLA Section 107(b)(1)-(4), the release or threat of release of hazardous substances was caused solely by unrelated persons or events. Applying Section 107(a) to the undisputed facts, each defendant is clearly liable.

A. Liability of Generator Defendants

Section 107(a) of CERCLA provides in part that

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section —

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances . . . from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan . . . .

42 U.S.C. § 9607(a).

Stripping away the excess language of the statute, a generator may be held liable under Section 107(a)(3) of CERCLA if the government can prove that:

a. The generator's hazardous substances were, at some point in the past, shipped to a facility;

b. The generator's hazardous substances or hazardous substances like those of the generator were present at the site;

c. There was a release or threatened release of a or any hazardous substance at the site;

d. The release or threatened release causes the incurrence of response costs.

Under CERCLA's express terms, plaintiff need proving [sic] nothing more. See United States v. Wade, No. 79-1426, Memorandum Opinion [14 ELR 20096] (E.D. Pa. December 20, 1983).

Generator defendants would nonetheless have this court require plaintiff to prove that hazardous substances traceable to each generator were released at the Bluff Road site or that their specific substances were more than a de minimis factor in a release or threatened release. Significantly, similar "causation" arguments were recently expressly rejected by the Eastern District of Pennsylvania in United States v. Wade, supra, a case on all fours factually with this one.

In Wade, the court held that to require specific proof of causation would not only be at odds with the express language of the statute,³ but also would effectively "eviscerate the statute" because of the technological infeasibility of "fingerprinting" a given generator's substances at a site. Id. at 7. In support of its conclusion, the court noted that Congress considered and rejected language imposing liability on "any person who caused or contributed to the release"⁴ in favor of CERCLA's present liability classification scheme, which clearly does not include comparable language. Id. at 9. Concluding that Congress had not intended to saddle the government with an impossible causation burden, the court held that "[t]he only required nexus between the defendant and the site is that the defendant have dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site." Id. at 9.

This court agrees with the conclusions reached in Wade and therefore rejects defendants' causation arguments. Plaintiff's burden of proof is defined by and limited to the express terms of the statute.⁵ Applying those terms to the undisputed facts, it is clear that each of the generator defendants made arrangements [14 ELR 20275] with SCRDI or its predecessors for disposal or treatment of wastes containing hazardous substances and that, as evidenced by the identification of each generator's drums at the Bluff Road site, such wastes were shipped to the site. It is further undisputed that hazardous substances like those of each of the generator defendants were present at the site at the time of cleanup, as shown by samples taken at the site;⁶ that there were releases and threatened releases of hazardous substances at the site; and that the government incurred costs in responding to those releases and threatened releases. Thus, based on the undisputed facts, each of these generator defendants is subject to liability under Section 107 of CERCLA.

B. Liability of the Landowners

Under Section 107(a)(2) of CERCLA, "any person who at the time of disposal of any hazardous substance owned or operated any facility at which hazardous substances were disposed of" and at which there has been a release or threatened release of hazardous substances, is liable for response costs incurred at the site. 42 U.S.C. § 9607(a)(2). The landowners Hutchinson and Seidenberg do not dispute their ownership of the Bluff Road property or that hazardous substances were disposed on the property during their period of ownership. They also have not disputed that there were releases and threatened releases of hazardous substances at the site which caused the incurrence of response costs. Consequently, there are no material issues with respect to these defendants' liability.

In this connection, the court notes that after the summary judgment hearing, the landowners sought to amend their Answer, which the court permitted with plaintiff's consent. The landowners urge that their Answer, as amended, raises disputed issues of fact concerning the affirmative defense to liability provided by 42 U.S.C. § 9607(b)(3). The court does not agree that the amended Answer and the landowners' affidavits raise such genuine issues of fact. The § 9607(b)(3) defense would require the landowners to prove inter alia that "the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by . . . (3) an act or omission of a third party other than . . . one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly with the defendant . . . ." (emphasis added).Because there is no question of the contractual link between the landowners and SCRDI, whose liability is admitted, the landowners cannot under any circumstances prove that the release was caused "solely" by a third party which did not share a contractual relationship with them. Thus, because the § 9607(b)(3) defense is unavailable to them from the outset, the landowners cannot rely on disputed factual issues concerning its other requirements to bar the summary judgment against them.

C. Liability of SCRDI

SCRDI has not contested any facts material to its liability as operator of the Bluff Road site. Furthermore, SCRDI's counsel consented to the entry of summary judgment against SCRDI at oral argument on this matter.

D. Liability of COCC

COCC has attempted to show a factual dispute with respect to its responsibility for the Bluff Road site by way of affidavits written in July of 1980 by its President, Steven Reichlyn and its former President, Max Gergel. Portions of both affidavits state that COCC was never involved in hazardous waste disposal or storage activities. The Reichlyn affidavit further suggests that COCC leased only a fraction of the Bluff Road site from the landowners.

Plaintiff has moved to strike these assertions in the affidavits, arguing that they fail to raise a genuine issue of fact because they are grossly inconsistent with the rest of the record in the case. Plaintiff further contends that the statement in the Reichlyn affidavit are not based on personal knowledge.

While the court recognizes that other aspects of the record sharply conflict with the affidavits offered by COCC, it concludes that such credibility determinations should be made at trial, and not on a motion for summary judgment.

Joint and Several Liability of Defendants

Having determined that each of the defendants except, at this point, COCC, are liable for response costs under Section 107(a) of CERCLA the extent of their liability must now be determined. Several courts have recently addressed this issue and have reached the conclusion that joint and several liability is appropriate under CERCLA in circumstances of indivisible injury. See, e.g., United States v. Wade, supra, at 21-22; United States v. Chem-Dyne, No. C-1-82-40, Order Denying Defendants' Motion for Partial Summary Judgment (S.D. Ohio December 11, 1983). This court finds particularly persuasive the conclusions reached in the Chem-Dyne decision and adopts the analysis and standard employed by the court in that case.⁷ In Chem-Dyne, the court made the following conclusions:

This case, as do most pollution cases, turns, on the issue of whether the harm . . . is "divisible" or "indivisible." If the harm is divisible and there is a reasonable basis for apportionment of damages, each defendant is liable only for the portion of the harm he himself caused . . . . In this situation, the burden of proof as to apportionment is upon each defendant . . . . On the other hand, if the defendants caused an entire indivisible harm, each is subject to liability for the entire harm.

Id. at 18 (citations omitted and emphasis added). Under the Chem-Dyne standard, this court's initial focus should be on whether the harm at the Bluff Road site was divisible, an issue upon which defendants bear the burden of proof. If the harm was indivisible, the court's inquiry is complete for purposes of this action.

This court concludes that, based on undisputed facts, the harm at the Bluff Road site was indivisible. Because of the deleterious condition of the site at the time of cleanup, it is impossible to divide the harm in any meaningful way. There were thousands of corroded, leaking drums at the site not segregated by source or waste type. Unknown, incompatible materials comingled to cause fires, fumes, and explosions. Because of the constant threat of further fires, explosions, and other reactions, all of the materials at the site were, if not actually oozing out, in danger of being released. Thus, while all of the substances at the site contributed synergistically to the threatening condition at the site, it is impossible to ascertain the degree of relative contribution of each substance. Clearly, the harm was indivisible, and defendants have failed to meet their burden of proving otherwise.

Generator defendants have argued that there may be a means of roughly apportioning the costs of cleanup among responsible parties by calculating their relative volumetric contributions from shipping documents, and that, therefore, the harm is divisible. But, as noted by the court in Chem-Dyne, "the volume of waste of a particular generator is not an accurate predictor of the risk associated with the waste because the toxicity or migratory potential of a particular hazardous substance generally varies independently of the volume." Chem-Dyne, supra, at 18. Such arbitrary or theoretical means of cost apportionment to not diminish the indivisibility of the underlying harm, and are matters more appropriately considered in an action for contribution between responsible [14 ELR 20276] parties after plaintiff has been made whole.⁸ Because the harm at the Bluff Road site is indivisible, each defendant against whom summary judgment is granted is jointly and severally liable for costs incurred at the site.

Constitutional Issues

Environmental statutes like CERCLA which regulate and adjust the benefits and burdens of economic life come before the Court with a strong presumption of constitutionality. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83-84 [8 ELR 20545] (1978). The generator defendants in this case nevertheless urge this court to find that liability under CERCLA is unconstitutionally retroactive and, further, that CERCLA violates the Contract Clause of the United States Constitution. These arguments are without force.

Defendants' Contract Clause argument is particularly transparent. Article I, § 10 of the Constitution provides that "[n]o State shall . . . pass any . . . law impairing the obligation of contracts." (Emphasis added). Thus, by its express terms, the Contract Clause applies only to State legislation, not federal laws like CERCLA. See Allied Structural Steel Company v. Spannaus, 438 U.S. 234, 257 (1978), reh. den., 439 U.S. 886; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589 (1935), reh den., 296 U.S. 661; Hanover National Bank v. Moyses, 186 U.S. 181, 188 (1902). Moreover, even if the Contract Clause were construed to apply to CERCLA, the Act has not operated substantially to impair these defendants' waste disposal contracts with SCRDI. On the contrary, the contracts remain valid and enforceable between the parties. There is nothing to prevent a generator defendant held liable here from seeking indemnity from SCRDI under their contract.

While somewhat more substantial, defendants' argument that CERCLA is so impermissibly retroactive that it violates due process also fails. Although liability under CERCLA is premised in part upon conduct which occurred prior to CERCLA's enactment in 1980, this court not consider CERCLA "retroactive" in the constitutional sense as applied to the facts of this case. The plain language of Section 107 of CERCLA makes it quite clear that CERCLA is a broad remedial statute premised upon present and future effects of defendants' past actions — a "release" or a "threatened release" of a hazardous substance must occur before any liability attaches. A statute that attaches liability to present conditions stemming from past acts does not necessarily have retroactive effects that are subject to due process limitations.⁹ As noted by the Supreme Court in Reynolds v. United States, 292 U.S. 443 (1934), "A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment." Id. at 449.

Recent decisions under Section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, a statutory provision analogous to Section 107 of CERCLA, are persuasive on this point. Section 7003 authorizes the United States to bring suit to secure such relief as is necessary to abate an imminent and substantial endangerment to health or the environment caused by hazardous wastes. Courts interpreting Section 7003 have held that it is not "retroactive" in nature because its objective is to obtain relief to abate current and future hazardous conditions, notwithstanding the fact that the conditions might be attributable to past acts. See United States v. Price, 523 F. Supp. 1055, 1071-1072 [11 ELR 21047] (D.N.J. 1981), aff'd, 688 F.2d 204 [12 ELR 21020] (3d Cir. 1983); United States v. Diamond Shamrock Corporation, C.A. No. 80-1857, 17 ERC 1329 [12 ELR 20819] (N.D. Ohio May 29, 1981). As stated in United States v. Price.

Defendants . . . observe that Section 7003 was not adopted and did not become effective until 1976, and they argue that the statute was not meant to apply retroactively to acts that preceded that date. Hence, because the dumping of toxic wastes at Price's Landfill ceased in 1972, defendants argue that the statute cannot be used to impose liability on them.

We find this argument unpersuasive . . . . The gravamen of a Section 7003 action, as we have construed it, is not defendants' dumping practices, which admittedly ceased with respect to toxic wastes in 1972, but the present imminent hazard posed by the continuing disposal (i.e., leaking) of contaminants into the groundwater. Thus, the statute neither punishes past wrongdoing nor imposes liability for past acts. Rather, as defendants themselves argue, its orientation is essentially prospective. When construed in this matter, the statute simply is not retroactive. It merely relates to current and future conditions.

Id. (Emphasis added). See also Common wealth v. Barnes & Tucker Co., 23 Pa. Cmwlth. 496, 319 A.2d 871, 884 [4 ELR 20545] (Pa. Sup. Ct. 1974), 371 A.2d 461 [7 ELR 20394] (holding that a law requiring the abatement of present conditions constituting a public nuisance stemming from past acts is not a "retroactive" law), appeal dismissed sub nom. Barnes & Tucker Co. v. Pennsylvania, 434 U.S. 807 (1977).

Thus, it is this court's view that CERCLA is not retroactive as applied in this case. Such a construction avoids a constitutional question and is therefore preferred. Lorrilland v. Pons, 434 U.S. 575, 577 (1978); Crowell v. Benson, 285 U.S. 22, 62 (1932). It should be noted, however, that even if CERCLA were considered retroactive it would clearly satisfy the requirements of due process.

The fact that a statute has retroactive application that may upset settled expectations does not necessarily make it unconstitutional. Usery v. Turner Elkhorn, 428 U.S. 1, 16 (1976); Fleming v. Rhodes, 331 U.S. 100 (1947). "This is true even though the effect of the legislation is to impose a new duty or liability based on past acts." Turner Elkhorn, 428 U.S. at 16; Lichter v. United States, 334 U.S. 742 (1948); Welch v. Henry, 305 U.S. 134 (1938); Funkhouser v. Preston Co., 290 U.S. 163 (1933). In Turner Elkhorn, the leading case on the constitutionality of retroactive statutes, the Supreme Court made clear the standard to be employed in the imstant case: in the area of economic regulation, legislation that operates retroactively does not violate due process if it is rationally related to a valid Congressional purpose. 428 U.S. at 15-16.

In Turner Elkhorn, the Supreme Court unheld the Black Lung Act of 1972, 30 U.S.C. § 901, against a challenge that it violated due process because it applied retroactively. The Act required coal mine operators to compensate past and present miners, as well as miners' survivors, for total disability or death [14 ELR 20277] due to black lung disease. Notably, miners who left employment before the effective date of the Act were eligible for benefits. The mine operators argued that "to impose liability upon them for former employees' disabilities is impermissibly to charge them with an unexpected liability for past, completed acts that were legally proper and, at least, in part, unknown to be dangerous at the time." 428 U.S. at 15. Rejecting the operators' challenge to the statute, the Court noted that

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.

Id. These principles, the Court elaborated, apply to retrospective, as well as prospective, legislation:

[O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability on past acts.

Id. at 16 (citations omitted). The Court concluded that Congress had acted rationally in enacting the Black Lung Act:

[T]he imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor — the operators and the coal consumers.

Id. at 18.

To the extent that CERCLA is considered retroactive, it clearly satisfies the Turner Elkhorn standard. Like the statute at issue in Turner Elkhorn, CERCLA was enacted in response to the threat perceived by Congress to be caused by inactive and abandoned hazardous waste sites, a problem described as the most serious health and environmental problem of the decade. See S. REP. NO. 96-848, 96th Cong., 2d Sess. 2 (1980). As with the Black Lung Act, Congress intended through CERCLA to create a broad remedial statute which allocates to those persons responsible for creating dangerous conditions, and who profited from such activities, the true costs of their enterprise. An overriding objective in enacting CERCLA [sic] to spread the economic costs of cleanup operationsamong "those responsible for any damage, environmental harm, or injury [resulting from] chemical poisons . . . ." S. REP. NO. 96-848, 96th Cong., 2d Sess. 12 (1980).¹⁰

The liability scheme established under CERCLA is clearly a rational means of achieving this objective. Whether some other approach to spread these costs would have been wiser or more practical is not a question of constitutional dimensions but is rather a policy question which must be left to the Congress and not to the courts. Turner Elkhorn, 428 U.S. at 19. Having recognized a rational relationship between Congress' goals and the means chosen to implement them, this court concludes that, if considered retroactive, CERCLA is not unconstitutionally retroactive.¹¹

Timeliness of Action

As a final matter, several of the defendants have urged that because the government had not yet incurred all response costs associated with surface removal activities at the Bluff Road site at the time its amended complaint was filed, and Section 107(a) of CERCLA limits the government's recovery to costs "incurred," plaintiff's action was prematurely instituted. As a practical matter, this issue is now moot, since surface removal activities at the site were completed in July of 1983. In any event, the government need not have incurred all costs related to a site before initiating a cost recovery action under Section 107(a) of CERCLA. See United States v. Wade, supra, at 13-14; United States v. A & F Materials, supra, at 18-19.

Conclusion

In summary, each of the defendants falls within one of the classes of persons identified in Section 107(a) of CERCLA as liable for response costs associated with the Bluff Road site. Because the harm at the site was indivisible, their liability is joint and several. Therefore, this court, finding no constitutional impediments to its conclusions, denies defendants' motions and grants summary judgment in favor of plaintiff on the issue of the joint and several liability of each defendant except COCC for surface removal costs incurred by plaintiff at the Bluff Road site. Summary judgment against COCC is denied. The liability of COCC and the amount of recovery to which plaintiff is entitled will be resolved in subsequent proceedings.

AND IT IS SO ORDERED.

1. A factual dispute exists regarding whether COCC leased all of the Bluff Road site or only a portion thereof, as well as whether COCC was ever involved in hazardous waste disposal or storage activities.

2. The standard of liability provided for in Section 107 is undoubtedly strict liability. See, e.g., United States v. Price, Civil Action No. 80-4101, 19 ERC 1638, 1647 [13 ELR 20843] (D.N.J. July 28, 1983); City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1148 [12 ELR 20915] (E.D. Pa. 1982); United States v. Royal N. Hardage, No. CIV 80-1031-W, Findings of Fact and Conclusions of Law (W.D. Okla. December 13, 1982), 13 ELR 20188. Apart from the express language of the provision, the definitional section of CERCLA, 42 U.S.C. § 9601(32), makes it clear that the standard of liability that obtains under CERCLA is the same as the standard under Section 311 of the Clean Water Act, 33 U.S.C. § 1321. That section clearly imposes strict liability. See, e.g., United States v. Bear Marine Services, 50 F. Supp. 710 [11 ELR 20659] (E.D. La. 1980), rem'd on other grounds, 696 F.2d 1117 (5th Cir. 1983); United States v. Tex-Tow, 589 F.2d 1310 [9 ELR 20006] (7th Cir. 1978).

3. The generator defendants in Wade, like the generator defendants in this case, read CERCLA Section 107(a)(3) to require a showing that a generator's substances were shipped to a site and that there was a release or threatened release of such hazardous substances. The statute, however, requires only that there be a release or threatened release of a or any hazardous substance at the site.

4. The Court was referring to H.R. 7020, 96th Cong., 2d Sess., § 3071(a)(1), 126 CONG. REC. at H9459 (daily ed. Sept. 23, 1980) and SENATE STAFF WORKING PAPER #1 ON S. 1480: SENATE COMM. ON ENVIR. AND PUB. WORKS, 96th Cong., 2d Sess. § 4(a) (February 1, 1980), reprinted in A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, SENATE COMM. ON ENVIR. AND PUB. WORKS, S. DOC. NO. 97-14, 96th Cong., 2d Sess. (1983).

Notably, provisions of CERCLA's legislative history cited by generator defendants for the proposition that specific causation must be shown under Section 107(a)(3) relate either to the original causation language in H.R. 7020 or to a personal injury remedy that was also dropped from the Act. These provisions are, therefore, unpersuasive.

5. The statute takes into account that synergistic potential of improperly managed hazardous substances and essentially presumes a contributory "causal" relationship between each of the hazardous substances disposed of at a site and the hazardous conditions existing at the site. This presumption may be rebutted under Section 107(b) of CERCLA if a defendant can show that the conditions at the site were caused solely by a person unrelated contractually to that defendant. While some of the defendants stated Section 107(b) defenses in their answers, none of them have supported that defense by way of affidavits or otherwise. Under summary judgment procedure, a party "may not rest upon the mere allegations or denials of his pleading but . . ., by affidavits or otherwise provided in this rule, must set forth specific facts showing that is a genuine issue for trial." FED. R. CIV. P. 56(e).

6. This court does not mean to suggest that because the government was able to show by way of chemical analysis in this case that each generator's substances or substances like those of each generator were at the site, it must undertake extensive sampling and analysis in performing cleanups. As the government pointed out in its affidavits, it would have cost in the range of $2.5 million to attempt through analytical means to identify all waste types in the conglomerate of materials stored at the Bluff Road site, approximately five times the cost of surface removal itself. Less resource exhaustive means of showing that a generator's waste or similar wastes are at a site, such as by identification of a generator's drum at the site during cleanup or by way of documentary or circumstantial proof that the wastes were hauled to the site absent proof that they were subsequently taken away, should also be sufficient to satisfy this element of proof.

7. After this court's bench ruling on the issue of each defendants' joint and several liability under CERCLA § 107, an opinion was rendered by the Southern District of Illinois, in United States v. A & F Materials Company, Inc., No. 83-3123, Memorandum and Order [14 ELR 20105] (January 20, 1984), on the same issue. The A & F decision could be considered at odds in some respects with the Chem-Dyne decision. This court finds the Chem-Dyne decision more in keeping with Congress' intention that evolving and traditional principles of common law and prior statutory law govern the courts' imposition of joint and several liability under CERCLA and, accordingly, follows the analysis employed in that case. I reject the analysis of A & F to the extent that it is inconsistent with Chief Judge Rubin's opinion in Chem-Dyne.

8. For some recent applications of this principle, see In the Matter of the Complaint of Berkely Curtis Bay Co., 557 F. Supp. 335 [13 ELR 20698] (S.D.N.Y. 1983) (although it was theoretically possible to apportion responsibility for an oil spill between two defendants 65%-35%, joint and several liability was nonetheless imposed); City of Perth Amboy v. Madison Industries, Inc., Sup. Ct. cf. N.J. Appellate Div., A-1127-81T3 and A-1276-81T3 (Consolidated) [13 ELR 20554] (April 21, 1983) (two waste generators held jointly and severally liable for contaminating a pond even though one of the generator's substances contaminated only the pond water and the other generator's substances contaminated only the pond sediments); State of New York v. Schenectady Chemicals, Inc., Reuselaer Co. Index No. 144654 [13 ELR 20550] (N.Y. Sup. Ct. Feb. 18, 1983) (joint and several liability could be imposed even though volumetric contributions of defendants were known).

As noted in the RESTATEMENT (SECOND) OF TORTS, "[i]n recent years the trend, both of legislation and of decision in absence of it, has been toward recognition of the right of contribution; and a substantial majority of states now grant contribution." § 886A, Comment (a). See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260 n.8 (1979) (citing § 886A of the RESTATEMENT). Such evolving principles of common law were intended by Congress of guide the courts in fleshing out CERCLA's liability provisions. Chem-Dyne, supra, at 10. Under the RESTATEMENT, questions of determining "equitable shares of the liability" with respect to an indivisible injury are appropriately resolved in an action for contribution after plaintiff has been made whole. See RESTATEMENT § 886A(1) and (2). Notably, Section 107(e)(2) of CERCLA permits actions in contribution among parties held jointly and severally liable. Chem-Dyne, supra, at 8 n.3; 126 CONG. REC. H11, 788 (daily ed. Dec. 3, 1980) (opinion of Assistant Attorney General read into record by Rep. Florio). Making plaintiff, the Fund, whole in the first instance allows costs expended at the Bluff Road site to be recouped quickly and applied to other hazardous waste problems.

9. See Chicago & Alton Railroad Company v. Tranbarger, 238 U.S. 67 at 73, 76 (1915) (statute requiring bridge culvert does not apply retroactively to railroad which built bridge without culvert three months before statute enacted; railroad subject to liability because "after that time [enactment of the statute] it maintained the embankment in a manner prohibited"); City of Bakersfield v. Miller, 64 Cal. 2d 93, 48 Cal. Rptr. 889, 410 P.2d 393, 399, cert. denied, 384 U.S. 988 (1966), (building constructed in accordance with existing building codes ordered modified pursuant to revised code which was enacted "to eliminate presently existing public danger"); Reynolds v. United States, 292 U.S. 443, 449 (1934); United States v. Jacobs, 306 U.S. 363, 367 (1939); Lewis v. Fidelity & Deposit Co. of Maryland, 292 U.S. 559, 571 (1934); Cox v. Hart, 260 U.S. 427, 435 (1922).

10. Similarly, as the Seventh Circuit noted in commenting on cost allocation under Section 311 of the Clean Water Act:

[T]he party engaged in the potentially polluting enterprise is in the best position to estimate the risk of accidental pollution and plan accordingly as by raising its prices or purchasing insurance. Economically, it makes sense to place the cost of pollution on the enterprise (here water transport of gasoline) which statistically will cause pollution and in fact does cause pollution.

United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314-15 [9 ELR 20006] (7th Cir. 1978).

11. The fact that some of the defendants held liable here have also contributed to the Hazardous Substance Response Trust Fund does not diminish CERCLA's rationality. To require the industry generically responsible for hazardous waste problems to contribute to a fund which bears the costs of cleaning up sites where viable responsible parties cannot be found, while at the same time holding individual companies liable for costs associated with specific sites to which they have contributed wastes, appears imminently rational.

This court also finds unpersuasive generator defendants' argument that the "irrebuttable causal presumption" embodied in Section 107(a) is unconstitutionally rigorous under the analysis employed by the Supreme Court in Turner Elkhorn. First, the presumption of contributary causation in Section 107(a) is not irrebuttable because a defendant may prove under Section 107(b) that the harm at a site was caused solely by persons or events unrelated to itself. Moreover, the presumption embodied in Section § 107 appears to be far less tenuous than the causal presumptions upheld by the Supreme Court in Turner Elkhorn. To be constitutional, "it is only essential that there be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate." Turner Elkhorn, 428 U.S. at 28. The rebuttable presumption that hazardous substances present at poorly managed hazardous waste sites contribute causally to the overall hazardous and threatening conditions at such sites is neither arbitrary nor irrational, and, therefore, satisfies due process.