United States v. Wade

No. 79-1426 (E.D. Pa. March 22, 1984)

The court rules that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes liability for response costs incurred before promulgation of the National Contingency Plan (NCP), but not prior to enactment of CERCLA. The court rules that CERCLA does not impose liability for response costs incurred before enactment of the statute on December 11, 1980. That Congress barred recovery for natural resources damages from private parties or the Superfund in cases where the damage and release occurred before December 11, 1980, and specified no such limit for response cost recovery actions, is not dispositive. The natural resources limit relates to the time of the injury; at issue is the timing of the response. Nor does § 104(c)(3), which gives a state required to provide 10 percent of the cost of CERCLA remedial actions a credit for response expenditures between January 1, 1978 and December 11, 1980, imply a congressional intent to allow recovery of pre-CERCLA response costs in general. Although imposing liability for pre-CERCLA response costs would further the statutory purpose of requiring those who created hazardous wastes to clean them up, there is no indication in the statute or legislative history that Congress intended to extend liability this far. Moreover, allowing liability for pre-CERCLA response costs would eliminate any temporal limitation on liability since the 28 U.S.C. § 2415, six-year statute of limitations for statutory claims by the government does not appear applicable to CERCLA actions.

The court next rules that CERCLA does impose liability for response costs incurred before promulgation of the NCP under CERCLA § 105. Nothing in the statute requires responses, when undertaken, to be consistent with an existing Plan, and such a requirement would fly in the face of the express requirement that all CERCLA provisions became effective upon enactment unless otherwise specified. The only other court to address the issue held that pre-contingency plan expenditures are recoverable, and the legislative history of the Act indicates that this result is not limited, as defendants suggest, to emergency actions under CERCLA § 106. Since plaintiff cannot recover response costs incurred before promulgation of the NCP if they are inconsistent with the Plan, there is no risk that defendants will be required to pay for response actions that are not cost-effective.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20435, 14 ELR 20436, 14 ELR 20439, 14 ELR 20440, and 14 ELR 20441 — Ed.]

Counsel are listed at 14 ELR 20096.

[14 ELR 20437]

Newcomer, J.:

Memorandum

This case now comes before the Court on the generator defendants' motions to exclude costs incurred by plaintiffs (1) prior to publication of the National Hazardous Substance Response Plan or (2) prior to the enactment of CERCLA, 42 U.S.C. § 9601 et seq. For reasons discussed below I conclude that costs incurred prior to December 11, 1980 — the date on which CERCLA became effective — are not recoverable but that publication of the National Hazardous Substance Response Plan was not intended by Congress to be a prerequisite to the expenditure of recoverable costs under § 107(a).

A. Pre-CERCLA Costs

CERCLA has consistently been interpreted to impose liability for acts occurring prior to its enactment. United States v. Northeastern Pharmaceutical, Civ. No. 80-5066-CV-S-4, Slip op. at 22-23 [14 ELR 20212] (W.D. Mo. Feb. 3, 1984); State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1314 [13 ELR 20457] (N.D. Ohio 1983). The issue here is whether it likewise imposes liability for clean-up measures undertaken prior to its enactment. Once again, the language is not dispositive.

The generators rely solely on the decision in Northeastern Pharmaceutical, supra at 25-29. That court engaged in a rather extensive discussion of the issue, ultimately concluding that had Congress intended to impose liability for pre-enactment costs it would have made the intent clearer. While I agree with the result in Northeastern Pharmaceutical my reasoning is slightly different.

Plaintiffs rely in part on inferences to be drawn from §§ 107(f) and 111(d)(1). Those sections prohibit recovery from private parties, or the Superfund, respectively, for natural resource damage where the damage and the release occurred wholly before December 11, 1980. Plaintiffs argue that the lack of any similar provision with respect to response costs necessarily implies that recovery for response costs is not so limited. While such an inference can be drawn from these sections it does not lead to the conclusion plaintiffs desire.

Instead, as the generator defendants correctly point out, the limitation on recovery for natural resources damage is a limitation based on the time at which the damage occurred, not on the time at which funds are spent to repair the damage. Thus, the only inference to be drawn from §§ 107(f) and 111(d)(1) and the absence of a similar limitation on response costs relates to the timing of acts giving rise to liability, not the timing of expenditures for which recovery may be had. No inference can be drawn concerning the recoverability of response costs incurred prior to December 11, 1980. As noted above issues of liability for prior acts and liability for prior costs are separate ones, the former being, as issues in CERCLA litigation go, "well settled."¹

The argument based on section 4(n) of S. 1480 and its accompanying legislative history suffers from a similar problem. That section, like § 107(f), only addressed the limitation of liability for acts occurring prior to CERCLA's enactment. Guidance must be sought elsewhere.

The Commonwealth's reliance on inferences to be drawn from § 104(c)(3) is equally unavailing. Section 104 requires, in part, that a state agree to pay 10% of the cost of all remedial actions undertaken at a site. Subpart (c)(3) provides for a credit against a state's 10% cost share for state funds spent on response measures between January 1, 1978 and December 11, 1980. The Commonwealth argues that Congress could not have intended, in effect, to use Superfund money for costs incurred during this "window period" while denying the Fund the right to seek reimbursement for those costs from responsible parties under § 107.

At best § 104(c)(3) could be construed to imply that Congress intended to permit recovery of costs incurred as early as January 1, 1978. I believe, however, that reading a January 1, 1978 limitation period into § 107 is at least as difficult as concluding the statute permits recovery for all pre-enactment costs. Certainly if Congress had such a specific date in mind for § 107 it would not have required the Court to comb unrelated provisions to find it.

The United States urges that a broad and liberal construction of CERCLA is necessary in order to effectuate the statute's purposes. While I generally agree with this principle I am still bound to ascertain as best as possible from the statute and its legislative history the Congressional intent with respect to various methods of achieving the statute's broad purposes.

Unquestionably one purpose of the statute is to impose the cost of cleaning up hazardous waste dumpsites on the parties responsible for creating the wastes. Equally clear is that this purpose would be furthered by imposing liability for pre-enactment costs. In a sense, failure to impose such liability penalizes those who responded promptly to hazardous sites prior to the enactment of CERCLA.²

[14 ELR 20438]

Nevertheless, the imposition of liability for pre-enactment costs would trouble me for two reasons. First, plaintiffs have not directed me to, and my independent search has failed to uncover, any clear indication that Congress ever focussed on the issue of liability for pre-enactment costs.

The concern is not, as the United States suggests, that such a holding would expose hazardous waste defendants tomillions of dollars of additional liability. Clearly post-CERCLA costs present the greater liability exposure. Instead the concern is with Congressional intent. Had Congress intended to impose liability for pre-enactment costs it ought to have made that intent clear in the legislative history, if not the language, of the statute, especially given the clear Congressional awareness of the magnitude of pre-CERCLA costs. See e.g., 126 CONG. REC. S14969-14971 (daily ed. Nov. 24, 1980) (remarks of Senator Moynihan concerning price tag for cleanup of Love Canal and remarks of Senator Bradley concerning cleanup of Elizabeth, New Jersey site). No mention is made of recouping these costs under CERCLA. Instead, the overwhelming thrust of legislative history is towards the need to establish a nationwide mechanism for beginning cleanup of existing sites and recovering the costs of that cleanup from responsible parties where possible. See, e.g., 126 CONG. REC. S14969-14977 (daily ed. Nov. 24, 1980) and H9446-9448 (daily ed. Sept. 23, 1980); H.R. REP. 1016, 96th Cong., 2d Sess., reprinted in 1980 U.S. CODE CONG. & AD. NEWS 6119.

In addition, I am troubled by the combined effect of CERCLA's statute of limitations, 42 U.S.C. § 9612(d), and a holding that pre-enactment costs are recoverable. Provided the government filed suit on or before December 12, 1983, such a holding would permit a plaintiff to recover past costs, regardless of when incurred. It is one thing to entertain a lawsuit in which the acts giving rise to liability occurred well in the past but in which response to those acts is ongoing. It is quite another to permit actions in which all relevant events took place in the indeterminate past. I realize the latter situation is not what I have before me in this case but it could be if I ruled as the government requests.

The United States attempts to meet such an objection by arguing that any claim for costs is subject to the six-year statute of limitations applicable to statutory claims by the government found in 28 U.S.C. § 2415. Aside from the difficulty of fitting this action into any of the subparts of 28 U.S.C. § 2415, I see no indication Congress intended a Court to make reference to this provision during the course of CERCLA litigation.

B. Costs Incurred prior to publication of the National Hazardous Substance Response Plan

CERCLA authorizes recovery of "all costs . . . incurred by the United States Government or a state not inconsistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(A). ["]National contingency plan" is defined as the plan published under § 311(c) of the Federal Water Pollution Control Act (FWPCA) or as revised pursuant to section 104 of CERCLA, 42 U.S.C. § 9601(31). Section 105 requires modification of the FWPCA plan, within 180 days of the enactment of CERCLA, to reflect and effectuate the responsibilities and powers" created by CERCLA. One provision of the modified plan was to be designated the national hazardous substance response plan and was to establish procedures and standards for responding to releases of hazardous substances.The revised plan was not, in fact, published until nineteen months after CERCLA's effective date.

Defendants argue that costs incurred prior to promulgation of the national hazardous substance response plan are not recoverable. They first argue that the express language of § 107 dictates this result. I reject this contention. Nothing in the statute itself unambiguously states that clean-up measures, when undertaken, must be consistent with an existing national contingency plan. Section 107 is silent as to the temporal relationship between the incurrence of costs and the publication of a revised national contingency plan.

Furthermore, the statute clearly states that unless otherwise provided all provisions are to become effective on December 11, 1980. Thus, Congress apparently intended that § 107 become effective immediately despite the fact that § 105 provided for an additional six-month period in which to revise the FWPCA national contingency plan. Certainly Congress foresaw that CERCLA litigation would be protracted and that the absence of a national contingency plan during the first six months — or first nineteen months as ultimately proved to be the case — would not present a problem from a trial standpoint. In fact the section 101 definition of national contingency plan carries the implication that, if necessary, reference was to be made to the FWPCA plan in the interim.

One other court has concluded that pre-national contingency plan costs are recoverable under CERCLA. United States v. Reilly Tar & Chemical, 546 F. Supp. 1100, 1114-1116 [12 ELR 20954] (D. Minn. 1982). That decision relied in large part on legislative history of the Act reflecting an intent that clean-up of hazardous waste dumpsites proceed promptly. The generator defendants attack the soundness of this reasoning because the legislative history relied upon pertains not to § 107 but to the precursor of § 106 which deals with emergency abatement actions. They argue that while Congress may have intended that emergency measures not be delayed by the development of a revised national contingency plan no such urgency was indicated with respect to non-emergency response measures.

The premise on which this contention is based is inaccurate. The House report³ relied upon by Judge Magnuson did, in fact, pertain to § 3041 of H.B. 7020. While § 3041 was entitled "Emergency Response" the section was not so limited. For example, § 3041(a)(2) permitted the Administrator, upon determining that a dumpsite might present an unreasonable risk of harm to the public or the environment, to "relocate, contain, and cleanup" the hazardous waste at the site and to take "such other remedial action" as he deems necessary.⁴ Thus, legislative history addressing § 3041 is not inherently directed at emergency response authority. In addition, Judge Magnuson relied on a Senate Report⁵ which is likewise directed to non-emergency response authorities. Certainly this legislative history, when viewed in conjunction with the factors discussed above, defeats any argument that publication of a revised national contingency plan was intended to be a prerequisite to the incurrence of recoverable response costs under § 107.

The generator defendants quite properly argue that one purpose in requiring that cleanup measures for which recovery is sought be consistent with the national contingency plan was to ensure evenhanded, responsible, and cost-efficient enforcement of CERCLA. Where they err is in concluding that to permit recovery for costs incurred prior to publication of the plan, but which are in fact consistent with the plan as subsequently published, would somehow undermine this policy. The only danger I foresee in permitting cleanup measures to go forward in the absence of a revised national contingency plan is one incurred by plaintiffs. The government will obviously encounter greater difficulty in assessing whether its costs will be recoverable before, as opposed to after, publication of the plan. Provided the national contingency plan is ultimately revised, as it was, and provided costs incurred either before or after publication are not inconsistent with the plan, which remains to be seen in this case, the Congressional concern with restraining agency action will be satisfied. Under such circumstances no defendant can argue it is being saddled with liability for irresponsible agency action contrary to the intent of Congress.

Order

AND NOW, this 22nd day of March, 1984, upon consideration of the generator defendants' motions in limine pertaining to recoverable costs, it is hereby Ordered that

(1) defendants' motion in limine to exclude proof of costs incurred by plaintiff and intervening plaintiff prior to the publication of the National Hazardous Substance Response Plan is DENIED;

(2) defendants' motion for a ruling that pre-Superfund costs are not recoverable is GRANTED. Plaintiffs may not recover under § 107(a)(3)(A) for costs incurred prior to December 11, 1980.

AND IT IS SO ORDERED.

1. The court in Northeastern Pharmaceutical made the curious statement that "reference to time limits placed in Sections . . . 107(f) and 111(d) could equally indicate that these are the only provisions in which pre-CERCLA costs may be recoverable." Slip op. at 27. To the extent this statement played a part in Judge Clark's otherwise well-reasoned decision, I must reluctantly reject it. As discussed above, those sections prohibit, rather than permit, recovery for pre-CERCLA damages.

2. On the other hand, given CERCLA's otherwise strong liability provisions, I have difficulty characterizing my conclusion here as one that imposes a "penalty." Certainly parties that engaged in cleanup prior to the enactment of CERCLA could not have done so in reliance upon its provisions.

3. H.R. REP. NO. 1016, 96th Cong., 2d Sess., reprinted in 1980 U.S. CODE CONG. & AD. NEWS 6119, 6133.

4. H.R. 7020, 96th Cong., 2d Sess., 126 CONG. REC. H9455, 9479 (Sept. 23, 1980).

5. S. REP. NO. 848, 96th Cong., 2d Sess. 62 (1980).