United States v. Stringfellow

No. CV-83-2501-MML (C.D. Cal. April 5, 1984)

The court rules that § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows imposition of joint and several liability, but that the imminent hazard provisions of CERCLA and other environmental statutes do not. The court first rules that CERCLA § 107(a) permits, but does not require, joint and several liability. The legislative history indicates that joint and several liability could be imposed and the deletion of a provision requiring joint and several liability does not preclude it. The court next rules that there should be a uniform federal common law rule governing when joint and several liability is appropriate. It agrees with the court in United States v. A & F Materials, 14 ELR 20105, that liability is joint and several unless defendants carry the burden of establishing a basis for apportionment or the court determines that apportionment is appropriate on equitable grounds.

The court declines to extend its ruling on joint and several liability to the imminent hazard provision in CERCLA § 106(a). It finds no reason why the section must be interpreted in parallel with § 107(a). Section 107(a) addresses past dischargers and provides legal relief; § 106(a) addresses current hazards and operates through equity. Thus the court holds that § 106(a) does not provide an alternative means of reimbursement for government response costs. Rather, actions under § 106(a) to compel abatement action or for payment of money (an equitable remedy distinct from damages) must specify the action or payment required of each defendant.

The court next turns to § 7003 of the Resource Conservation and Recovery Act, § 504 of the Federal Water Pollution Control Act, and § 1431 of the Safe Drinking Water Act, imminent hazard provisions similar to CERCLA § 106(a). It rules that these provisions do not allow joint and several liability. The language and legislative history of the imminent hazard provisions indicate that Congress intended to apply established equitable remedies for nuisances to the pollution problems addressed by each statute. While Congress did make the imminent hazard provisions broader than nuisance law, the remedies still are essentially equitable and the court's analysis of joint and several liability under CERCLA § 106(a) applies.

Finally, the court holds that California common law allows joint and several liability, but that the California Hazardous Substances Account Act does not. The Act explicitly requires apportionment of recoverable costs. California nuisance law, on the other hand, allows joint and several liability if the injury cannot be apportioned.

[Related cases are published at 14 ELR 20381 and 20388 — Ed.]

Counsel are listed at 14 ELR 20381.

[14 ELR 20385]

Lucas, J.:

Order Denying in Part and Granting in Part Defendants' Motion to Dismiss the First Amended Complaint or in the Alternative to Strike

Several defendants have moved the Court to dismiss the first amended complaint pursuant to Rule 12(b)(6) or, in the alternative, to strike references to joint and several liability pursuant to Rule 12(f).¹ The motion came on for hearing before the Court, the Honorable Malcolm M. Lucas, District Judge, presiding. Having duly considered the papers submitted and the oral argument of counsel, the Court hereby denies the motion in part and grants it in part.

Background

In this action the United States and the State of California have sued the owners and operators of a toxic waste disposal site, commonly called the Stringfellow Acid Pits, as well as various generators and transporters of toxic wastes dumped at the site. The governmental plaintiffs seek, inter alia, to recover the costs of remediation at the site pursuant to several federal and state laws: the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), sometimes called the Superfund Act, 42 U.S.C. §§ 9601-9657; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6987; the Federal Water Pollution Control Act (the Clean Water Act), 33 U.S.C. §§ 1251-1376; the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-10; the California Hazardous Substances Account Act, CAL. HEALTH & SAFETY CODE §§ 25300-25395; and the California law of nuisance. The moving defendants ask the Court to dismiss the first amended complaint on the grounds that it alleges against them a form of liability, viz., joint and several, that none of the statutes or laws cited by plaintiffs allows. In the alternative, movants ask the Court to strike allegations of joint and several liability.²

Discussion

Movants in essence seek a form of partial summary adjudication.³ The Court concurs with the suggestion of the parties that an early determination of the issues posed by the motion will be helpful and should be made. See FED. R. CIV. P. 1; MANUAL FOR COMPLEX LITIGATION § 1.80 (1982).Accordingly, the Court here disposes of the questions raised with respect to the statutory schemes and laws invoked by plaintiffs.

A. CERCLA

CERCLA represents the response of Congress to the notorious problem of abandoned hazardous waste dumps. See H.R. REP. NO. 1016, 96th Cong., 2d Sess. 25 (1980), reprinted in 1980 U.S. CODE CONG. & AD. NEWS (USCCAN) 6119, 6128.

1. Section 107(a)

Section 104 of CERCLA, 42 U.S.C. § 9604, the response section, works in tandem with section 107, id. § 9607, the liability section. H.R. REP. NO. 1016, supra, at 33, reprinted in 1980 USCCAN at 6136. In asking for joint and several liability in their second and seventh claims, plaintiffs rely on section 107(a).The moving defendants contend that section 107(a) refers simply to the "liability" of owners and operators, generators, and transporters. They then argue that Congress's deletion of all references to "joint and several" in the final form of CERCLA precludes any imposition of joint and several liability.⁴

Plaintiffs respond that the terms of section 107(a) require the imposition of joint and several liability. They point out that section 107(a) states that "any person who [was an owner or operator, generator, or transporter] shall be liable for all costs of removal or remedial action," 42 U.S.C. § 9607(a) (emphasis added), unless it can be shown by such person that the injury is divisible, id. § 9607(b). They buttress this argument by first observing that section 101(32) of CERCLA defines "liability," 42 U.S.C. § 9601(32), by reference to section 311 of the Clean Water Act, 33 U.S.C. § 1321, and then contending that section 311 makes liability both strict and joint and several. In the alternative, plaintiffs respond that Congress's deletion of all references to joint and several liability simply manifested a congressional decision not to make joint and several liability mandatory. Plaintiffs explain that Congress wanted the courts to adapt common law principles in fashioning suitable rules for deciding the scope of liability in given cases under CERCLA.

[14 ELR 20386]

Thus have the parties set the stage. Each side finds support both in the language of CERCLA, which bears the earmarks of hasty drafting and last-minute political compromise, and in its legislative history, which one District Court has described as "riddled by self-serving and contradictory statements." United States v. Wade, 577 F. Supp. 1326, [14 ELR 20096] (E.D. Pa. 1083). It thus falls to the Court to resolve an apparently inevitable dispute over CERCLA's meaning. The tools are familiar. The Court looks first to the statutory language, then to legislative history and purpose. See, e.g., Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 770 (1981); Cort v. Ash, 422 U.S. 66, 78 (1975). In looking to legislative history and purpose, however, the Court may not add to a statutory scheme an element that Congress chose to omit. Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981) (inappropriate for judiciary to formulate right of contribution when Congress has not conferred such power). Nor may the Court seek to avoid an apparent inequity that the statutory language makes inescapable. Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 98 n.41 (1981) (equitable considerations should be addressed to Congress). See generally Note, Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court, 95 HARV. L. REV. 892 (1982).

Given these ground rules, it would be tempting to follow plaintiffs' suggestion, concluding that the plain meaning of the statutory terms, "any person . . . shall be liable for all costs," requires the imposition of joint and several liability, except perhaps when the defendant can prove that the injury is divisible. See City of Milwaukee v. Illinois, 451 U.S. 304, 315 [11 ELR 20406] (1981) (courts must defer when Congress has addressed a problem). However, in this instance the legislative history points unmistakably in the opposite direction.

The House committee bill appeared to require joint and several liability in section 3071(a)(1), but it directed the courts to apportion all unapportioned costs "to the maximum extent practicable." H.R. 7020, 96th Cong., 2d Sess., § 3071(a)(2)(B), 126 CONG. REC. 26,779 (1980). However, by adopting the so-called Gore compromise amendment by a voice vote on September 23, 1980, 126 CONG. REC. 26,788 (1980) the House would have permitted the courts to impose joint and several liability whenever defendants failed to satisfy the statutory criteria for apportionment. 126 CONG. REC. 26,781 (1980) (text of Gore amendment). The Senate committee bill, on the other hand, would have required the imposition of joint and several liability. S. 1480, 96th Cong., 2d Sess., § 4(a), 126 CONG. [REC.] 30,906, 30,908 (1980). Eventually, however, the Senate removed all explicit references to joint and several liability from the final Senate bill. 126 CONG. REC. 31,950, 31,955 (1980) (Senate-passed version). The chief Senate committee spokesperson, Senator Randolph, and the chief Republican sponsor in the Senate, Senator Stafford, both agreed that nothing in the final Senate version of CERCLA explicitly required joint and several liability. Id. 30,932 (1980) (remarks of Sen. Randolph); id. 39,935 (remarks of Sen. Stafford). The House sponsor, Representative Florio, explained that joint and several liability was imposed in the final Senate version through the cross-reference to section 311 of the Clean Water Act and through the common law, not through the explicit terms of the final version of section 107(a). See id. 31,965 (1980). The final Senate version was enacted into law. Thus, reading section 107(a) as explicitly imposing joint and several liability would fly in the face of the understanding of key legislators in both houses. Although the remarks of a single legislator are not controlling, Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979), statements of legislative sponsors are to be accorded "substantial weight" in interpreting a statute, Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976). Thus, the Court concludes that the explicit terms of section 107(a) do not require the imposition of joint and several liability.

Having cleared one hurdle, the Court must now decide whether CERCLA permits the courts to impose joint and several liability, the deletion of the terms by Congress notwithstanding. At the threshold the Court would note that the four District Courts that have published opinions on the instant question have concluded that federal courts may, but need not, impose joint and several liability. See United States v. Northeastern Pharm. & Chem. Co., __ F. Supp. __, No. 80-5066-CV-S-4 [14 ELR 20212] (W.D. Mo. Jan. 31, 1984); United States v. A & F Materials Co., 578 F. Supp. 1249 [14 ELR 20105] (S.D. Ill. 1984); United States v. Wade, supra; United States v. Chem-Dyne Corp., 572 F. Supp. 802 [13 ELR 20986] (S.D. Ohio 1983).

It is at this point that the self-serving and contradictory statements of the legislative history become troublesome. Senator Helms, who opposed CERCLA, described the effect of the Senate's deletion of references to joint and several liability in these terms: "The Government can sue a defendant under the bill only for those costs and damages that it can prove were caused by the defendant's conduct." 126 CONG. REC. 30,972 (1980). Whether or not Senator Helm's remarks can be accorded any significance, see Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203 n.24 (1976) (remarks by persons not responsible for bill are entitled to little weight), it is clear that Senator Randolph and Representative Florio, who were on the opposite side in the debate, believed CERCLA allowed the courts to impose joint and several liability in accordance with the common law principles usually applied to cases involving multiple tortfeasors and the law interpreting section 311 of the Clean Water Act. See 126 CONG. REC. 30,932 (Sen. Randolph stating that liability of joint tortfeasors will be determined by common law and prior federal statutory law); cf. id. 30,935 (Sen. Stafford indicating the "terms" joint and several liability had been removed); id. 31,965 (Rep. Florio arguing that final Senate version allowed joint and several liability under section 311 and the principles of common law).⁵ See generally Comment, Generator Liability Under Superfund, 130 U. PA. L. REV. 1229, 1265-78 (1982). Given this overall record, which admittedly is not free of efforts to characterize a compromise in ways calculated to influence subsequent interpretations, the history of CERCLA clearly points toward the conclusion that joint and several liability is permissible.

Although section 311 of the Clean Water Act, which was so often invoked in the debate,does not refer explicitly to joint and several liability, courts have imposed joint and several liability by invoking common law principles in interpreting section 311. E.g., United States v. M/V Big Sam, 681 F.2d 432, 439 [12 ELR 20994] (5th Cir. 1982), cert. denied, 103 S. Ct. 3112 (1983). Moreover, at the time of the enactment of CERCLA Congress was aware that the Coast Guard, the agency charged with implementation of section 311, viewed section 311 as permitting joint and several liability. See 126 CONG. REC. 31,965 (1980). Congress can be presumed to have had knowledge of interpretations given to incorporated law. Lorillard v. Pons, 434 U.S. 575, 581 (1978). Finally, the act of deletion by Congress need not militate against the Court's conclusion here, see Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974) (deletion by Congress Strongly militates against a conclusion that Congress intended what it declined to enact), inasmuch as there is ambiguity in the record in this instance, see id. (indicating that ambiguous legislative history is a factor that can be taken into account in reaching an interpretation ostensibly at odds with Congress); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 n.11 (1969) ("unsuccessful attempts at legislation are not the best of guides to legislative intent"). Thus, the Court concludes that section 107(a) permits joint and several liability.

Having reached this conclusion, the Court must next determine whether it should look to the common law of the forum or federal common law in deciding whether to impose joint and several liability. The Court is persuaded by the reasons given in A & F Materials Co., supra, that the need for a uniform federal common law is compelling. As the District Court in A & F Materials explained, CERCLA and the Clean Water Act taken together establish [14 ELR 20387] a substantial federal interest in the abatement of toxic waste hazards. Second, CERCLA establishes a scheme that depends upon the federal courts for implementation. In addition, a uniform federal law will prevent excessive dumping in states with lenient common law principles. Finally, the United States has an interest in preserving the integrity of the Superfund. Given a compelling need and the decision of Congress to leave the matter to the common law, it is appropriate for the federal courts to fashion a narrow body of federal common law. City of Milwaukee, supra, 451 U.S. at 312-13; Texas Indus., Inc., supra, 451 U.S. at 640

Finally, the Court concurs with the District Court in A & F Materials that the modern common law of liability for pollution provides a starting point for the development of federal common law:

[W]hen two or more persons acting independently caused a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he caused. RESTATEMENT (SECOND) OF TORTS, § 443A and § 881 (1976). The burden of proof as to apportionment is upon the defendant who seeks to limit his liability. Id. at § 443B. Nonetheless, where two or more persons cause a single and indivisible harm, each is subject to liability for the entire harm. Id. at § 875.

A & F Materials, supra, 578 F. Supp. at __. The Court further concurs that the legislative history of CERCLA calls for flexibility in the adaptation of the Restatement approach. Joining the Court in A & F Materials, the Court concludes that the guidelines of the Gore amendment should be used in determining whether damages should be apportioned. The criteria of the Gore amendment are these:

(i) the ability of the parties to demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can be distinguished;

(ii) the amount of the hazardous waste involved;

(iii) the degree of toxicity of the hazardous waste involved;

(iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;

(v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and

(vi) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.

Such criteria would allow the Court to take into consideration, e.g., the plight of a small contributor that is unable to prove the extent of its contribution. Furthermore, the adoption of these criteria is entirely consistent with the views of the floor leaders that Congress wanted to avoid mandatory joint and several liability. Indeed, several members of the House, including Representative Gore, expressed the view that the final version was essentially the same as the flexible House version. 126 CONG. REC. 31,978-79 (1980) (remarks of Rep. Jeffords); id. 31,980 (remarks of Rep. Gore) ("This is essentially the House bill.").

2. Section 106(a)

Section 106(a) of CERCLA, 42 U.S.C. § 9606(a), is the authority underlying plaintiffs' first claim. Plaintiffs contend that joint and several liability also applies to this "imminent and substantial endangerment" provision. Although the moving defendants address their argument in the main to section 107, it is clear that they contest plaintiffs' view.

Section 106(a) provides that when the President determines that "there may be an imminent and substantial endangerment to the public health" caused by an actual or threatened release of toxic wastes, he may require the Attorney General to secure "such relief as may be necessary to abate such danger or threat." The section further grants jurisdiction to the district courts to "grant such relief as the public interest and the equities of the case may require."

Contrary to plaintiffs' contention that it is "clear" that the scope of liability under section 106 is the same as that under section 107, the Court finds no compelling parallelism between the two provisions. Whereas section 107 specifically addresses the liability of persons who in the past disposed of or accepted hazardous wastes, section 106 speaks to the abatement of current dangers — the "actual or threatened release of a hazardous substance from a facility." In conferring jurisdiction on the District Courts, Congress intended that the courts' equitable powers be used. United States v. Wade, 546 F. Supp. 785, 794 [12 ELR 21051] (E.D. Pa. 1982). The use of the powers of courts of equity to remedy nuisances is of course ancient. W. PROSSER, THE LAW OF TORTS 603 (4th ed. 1971). Equitable relief, however, is not necessarily determinative of relief by way of damages. Id. at 604. Equitable relief and legal relief have their separate roles.It is eminently reasonable to assign to sections 106 and 107 distinct functions in CERCLA. Thus, the Court holds that plaintiffs may not seek through section 106 an alternative means of reimbursement under CERCLA. Insofar as plaintiffs may intend to ask the Court to compel certain actions on the part of defendants, i.e., not merely to restrain all defendants but to force the undertaking of positive steps, the Court concludes that such orders would have to state with specificity the steps to be taken and the party to take them. If steps were ordered taken jointly, the Court would have to prescribe the participation of each defendant. These principles would obtain even if plaintiffs were to ask for money. See generally United States v. Price, 688 F.2d 204 [12 ELR 21020] (3d Cir. 1982) (payment of money is possible form of equitable relief). Such equitable relief would be conceptually distinct from damages. Id. at 212. In sum, the Court sees no role under section 106(a) of CERCLA for what plaintiffs describe as "joint and several liability to abate."

B. Joint and Several Liability Under Remaining Federal Laws

Plaintiffs invoke the authority of section 7003 of RCRA, 42 U.S.C. § 6973, section 504 of the Clean Water Act, 33 U.S.C. § 1364, and section 1431 of the Safe Drinking Water Act, 42 U.S.C. 300i(a), in their third, fourth, and sixth claims, respectively. Defendants contend that none of these statutes either explicitly or implicitly authorizes the imposition of joint and several liability. They further claim that the legislative histories of the statutes are silent because they were not drafted to address problems of "inactive" waste sites like the Stringfellow Acid Pits. Finally, they assert that the decision of Congress not to impose joint and several liability under CERCLA forecloses the imposition of such liability in these more broadly worded statutes addressing other problems.

Plaintiffs of course respond that CERCLA permits joint and several liability. They further argue that the broad statutory language and the legislative history in each instance point to joint and several liability whenever the injury is indivisible.

Like section 106 of CERCLA, each of the above statutes is an "imminent and substantial endangerment" provision. They authorize officers of the Executive Branch to bring actions in the District Courts to obtain orders restraining persons causing or contributing to a situation endangering health. As in the case of CERCLA, to determine the meaning of each provision the Court looks to the statutory language and to legislative history and purpose.

Under the provisions of section 7003 of RCRA, in the event of an "imminent and substantial endangerment to health" the Administrator of the EPA may bring suit in a District Court to restrain any person contributing to the problem "or to take such other action as may be necessary." Similarly, under section 300i(a) of the Safe Drinking Water Act, the Administrator may commence a civil action "for appropriate relief, including a restraining order or permanent or temporary injunction," Under section 504 of the Clean Water Act, the Administrator may bring suit in a District Court to "immediately restrain any person" causing or contributing to pollution or to "take such other action as may be necessary." In the opinion of the Court, the language used by Congress indicates an intent to make the traditional equitable remedies against nuisances available to the Administrator and to enhance those remedies to the extent necessary to meet an acute contemporary problem.

This conclusion finds broad support in the RCRA legislative history:

Like other imminent and substantial endangerment provisions [14 ELR 20388] in environmental statutes, (e.g. section 504 of the Clean Water Act, section 303 of the Clean Air Act, and section 1431 of the Safe Drinking Water Act), section 7003 is essentially a codification of common law public nuisance remedies. The Congress made this intent clear as early as 1948 when, in section 2(d) of the Water Pollution Control Act (the forerunner of present-day imminent hazard provisions), it expressly declared that "[t]he pollution of interstate waters . . . which endangers the health or welfare of persons . . . is hereby declared to be a public nuisance and subject to abatement as herein provided" and authorized the appropriate Federal official to request the Attorney General to bring suit on behalf of the United States "to secure abatement of the pollution."

Section 7003, therefore, incorporates the legal theories used for centuries to assess liability for creating a public nuisance (including intentional tort, negligency, and strict liability) and to determine appropriate remedies in common law history attached to terms such as "imminent" and "substantial" as well as more recent legislative history. However, section 7003 should not be construed solely with respect to the common law. Some terms and concepts, such as persons "contributing to" disposal resulting in a substantial endangerment, are meant to be more liberal than their common law counterparts. For example, a company that generated hazardous waste might be someone "contributing to" an endangerment under section 7003 even where someone else deposited the waste in an improper disposal site (similar to strict liability under common law), 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), reprinted in 1980 USCCAN 5019, 5023. See also H.R. DOC. NO. 96-IFC-31, 96th Cong., 1st Sess. 31 (Comm. Print 1979) (RCRA legislative history); H.R. REP. NO. 1185, 93d Cong., 2d Sess. 35 (1974) (Safe Drinking Water Act "emergency powers").

Given the nature of the problem addressed by Congress, it is plain that the courts should not "undermine the will of Congress by either withholding relief or granting it grudgingly." Price, supra, 688 F.2d at 214. Nonetheless, the relief in question remains equitable and conceptually distinct from damages. Thus, the Court reaches with respect to these statutes the same conclusion it reached with respect to section 106(a) of CERCLA.

C. Joint and Several Liability Under California Law

Plaintiffs' eighth claim rests on the California Hazardous Substances Account Act, CAL. HEALTH & SAFETY CODE §§ 25300-25390. Section 25363 of that act explicitly requires that costs recoverable under its provision be apportioned.

Plaintiffs' ninth and tenth claims are based on the California law of nuisance and various provisions of the California Constitution and codes permitting the state Attorney General to bring actions seeking protection of the state's natural resources from pollution. Under California tort law, contributory tortfeasors, whether joint, concurrent, or successive, are normally held jointly and severally liable for the entire injury. 4 B. WITKIN, SUMMARY OF CALIFORNIA LAW 2333 (8th ed. 1974). In the case of nuisances, however, apportionment is ordinarily required. Carlotto Ltd. v. County of Ventura, 47 Cal. App. 3d 931, 121 Cal. Rptr. 171 (1975); accord, 47 Cal. Jur. 3d 255-56 (1979). Some older cases have even held that where apportionment is not possible recovery will be denied. Thome v. Honcut Dredging Co., 43 Cal. App. 2d 737, 742, 111 P.2d 368 (1941). More recent cases follow the principles of the Restatement (Second) of Torts and shift to defendants the burden of proving the extent to which damages can be apportioned. E.g., Carlotto, 47 Cal. App. 3d at 937. With such a shift, each may be held liable for the entire loss to the extent that it cannot produce evidence to limit its liability. W. PROSSER, supra, at 315-19 (cited with approval in Carlotto). Thus, under the California law of nuisance recovery may be had from any defendant in this action unless that defendant can by a preponderance of the evidence limit its liability.

Conclusion

The motion to dismiss the first amended complaint is denied. The motion to strike references to joint and several liability is denied in part and granted in part as explained above and as here summarized:

First, the Court may, but need not, impose joint and several liability under section 107(a) of CERCLA. The motion is thus denied with respect to section 107(a).

Second, joint and several liability allegations are not appropriate under section 106(a) of CERCLA, section 7003 of RCRA, section 504 of the Clean Water Act, or section 1431 of the Safe Drinking Water Act. Accordingly, the motion is granted with respect to these sections.

Under California's Hazardous Substances Account Act, liability must be apportioned. However, under the California law of nuisance, recovery may be had from any defendant in this action unless the defendant in question can by a preponderance of the evidence limit its liability. Inasmuch as this rule of the law of nuisance may differ in some respects from the usually applied concept of joint and several liability, this rule will be substituted for the plaintiffs' allegation of joint and several liability.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall serve, by United States mail, copies of this Order on counsel for the parties in this matter.

1. The motion was filed by generator defendants Alcan Alum. Corp., The Deutsch Co., General Elec. Co., General Steel & Wire Co., McDonnell Douglas Corp., Montrose Chem. Corp., National Distillers & Chem. Corp., Norris Industries, Rainbow Canyon Mfg. Corp., Rheem Mfg. Co., Rohr Indus., Inc., Quemetco, Inc., Stauffer Chem. Co., and Weyerhaeuser Co. The motion was later joined by three other generators, Rockwell International Corp., Northrop Corp., and Alumax Inc., and two transporters, Post Transp. Co. and BKK Corp.

2. The motion does not attack plaintiffs' fifth claim, which relies on section 311 of the Clean Water Act, 33 U.S.C. § 1321.

3. In modern practice motions under Rules 12(b), 12(c), 12(f), and 56 are virtually interchangeable. See 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1369 (1969). Nonetheless, some important differences remain. Id. Here, movants do not attack the legal sufficiency of the claims or their "materiality" so much as they seek to delimit the issues. Thus, the Court treats the motion as one seeking partial summary adjudication.

4. Movants concede that the CERCLA standard of liability, imported from section 311 of the Clean Air Act, is strict. Movants' Memorandum at 28-29.

5. Inasmuch as the final bill did not travel the usual committee paths, the statements of the floor leaders must be given substantial weight. See Federal Energy Admin., supra, 426 U.S. at 564. Defendants strenuously contest this point, arguing that Senator Helms must be viewed as the legislative leader and victor on the issue of joint and several liability. They make their contention on the basis of the removal of the "joint and several" language from the final bill. However, Senator Helms was unable, as he desired, to block congressional action on a "super-fund" bill. See 38 CONG. Q. WEEKLY REP. 3413 (1980). Thus, it appears that the most Senator Helms was able to exact from his colleagues in the Senate compromise was removal of all references to joint and several liability. See id. at 3435-37. Thus, after the compromise he attempted to put the most sweeping interpretation on the significance of the deletion.