United States v. Argent Corp.

No. 83-0523 JB (D.N.M. May 4, 1984)

The court rules that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes strict, and, where the injury is indivisible, joint and several liability. Strict liability is the standard, the court holds, since that is the standard imposed by § 311 of the Federal Water Pollution Control Act, which CERCLA § 101(32) makes the reference point for CERCLA liability. The court also rules that liability is to be joint and several where it would be under traditional tort law principles, but denies plaintiff's motion for summary judgment on this issue since there is a question of fact as to whether the injury in this case is indivisible, a prerequisite of joint and several liability under tort law. Finally, the court rejects defendants' defense that CERCLA violates due process under the principles of Mathews v. Eldridge, 424 U.S. 319 (1976).

Counsel for Plaintiff
John C. Martin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4059

Herbert A. Becker, Ass't U.S. Attorney
P.O. Box 607, Albuquerque NM 87103
(505) 766-3341

Counsel for Defendants
Lyman G. Sandy
Miller, Stratvert, Torgerson & Brandt
P.O. Box 25687, Albuquerque NM 87125
(505) 842-1950

[14 ELR 20497]

Baldock, J.:

Order

THIS MATTER comes before the court on plaintiff United States' Motion for Partial Summary Judgment against defendant Bishop. Having considered the parties' memoranda, having reviewed the applicable law, having adhered to the standard set forth in Rule 56 of the Federal Rules of Civil Procedure, and being otherwise fully advised in the premises, the court finds that the motion is well taken in part and should be granted in part.

Standard of Liability

The court finds the United States' Motion for Summary Judgment on the issue of the standard of liability imposed by CERCLA is well taken. This court holds as a matter of law that the Act's incorporation in § 101(32) of the standard of liability set forth in § 311 of the Clean Water Act, 33 U.S.C. § 1321, requires a strict liability standard in CERCLA § 107 actions. United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 844 [14 ELR 20212] (W.D. Mo. 1984), United States v. Price, 577 F. Supp. 1103, 1114 [13 ELR 20843] (D.N.J. 1983), City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140 n.4 [12 ELR 20915] (E.D. Pa. 1982).

Scope of Liability

The court finds that the United States' Motion for Summary Judgment on the issue of joint and several liability is not well taken. A careful review of the Act's legislative history makes clear to this court Congress' intent that the scope of liability under CERCLA is to be determined by applying traditional and evolving principles of tort law to the facts of each case. 126 CONG. REC. S. 14,964 (daily ed. Nov. 24, 1980) (statement by Sen. Randolph); 126 CONG. REC. H. 11,787 (daily ed. December 3, 1980) (statement by Rep. Florio); 126 CONG. REC. S. 14,967 (daily ed. Nov. 24, 1980) (statement by Sen. Stafford). While the legislative history suggests that courts have authority to impose joint and several liability under CERCLA, the compromise bill specifically rejected mandatory imposition of joint and several liability. 126 CONG. REC. S. 14,964, supra. Other courts considering the scope of liability under CERCLA have similarly interpreted the Act's legislative history. United States v. A & F Materials Co., Inc., et al., 578 F. Supp. 1249 [14 ELR 20105] (S.D. Ill. 1984); United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 579 F. Supp. 823 [14 ELR20212] (W.D. Mo. 1984); United States v. Chem-Dyne Corp., 572 F. Supp. 802 [13 ELR 20986] (S.D. Ohio 1983).

Traditional tort law principles provide for apportionment of damages where there is a reasonable basis for determining the contribution of each cause to a single harm. RESTATEMENT (SECOND) OF TORTS §§ 433A, 881 (1965, 1979). The evolving area of products liability tort law which applies a standard of strict liability analogous to CERCLA's strict liability standard also provides for apportionment of damages or a "comparative causation" theory. Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F. Supp. 598 (D. Idaho 1976); Scott v. Rizzo, 96 N.M. 682, 688-89, 634 P.2d 1234, 1240-41 (1981).

Having read CERCLA's legislative history as intending the application of tort law principles to the factual context of each case in order to determine the appropriate scope of liability under the Act, the court finds that the facts of this case raise genuine issues as to the divisibility of harm and the existence of a reasonable basis for apportionment of damages. The court finds therefore that plaintiff United States' Motion for Partial Summary Judgment as to the issue of joint and several liability should be denied.

Affirmative Defenses

By previous Order denying defendant Bishop's Motion for Summary Judgment, the court held that Bishop is an "owner" of a facility within the meaning of CERCLA and may be subject to liability for response costs incurred pursuant to the Act. The court also held that the defenses in § 107(b) of the Act are not available to defendant Bishop. The portions of plaintiff United States' Motion for Partial Summary Judgment which address those affirmative defenses are therefore moot. In addition, defendant Bishop's response to plaintiff's Partial Summary Judgment Motion indicates that Bishop has abandoned his sixth affirmative defense relating to a release solely within a work place, making that portion of plaintiff's Motion also moot.

The court finds that plaintiff United States' Motion for Partial Summary Judgment with regard to Bishop's seventh affirmative defense is well taken. A weighing of the factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), convinces the court that CERCLA is not unconstitutional as applied to defendant Bishop. See also J.V. Peters & Company, Inc., et al. v. Ruckelshaus, et al., No. C-83-4436 [14 ELR 20277] (N.D. Ohio Feb. 17, 1984).

The court finds that plaintiff United States' Motion for Partial Summary Judgment with respect to Bishop's third, fourth and fifth affirmative defenses is not well taken and should be denied. Possible fact issues remain with regard to these defenses.

WHEREFORE, plaintiff United States' Motion for Partial Summary Judgment against defendant Bishop being moot as to Bishop's first, second and sixth affirmative defenses,

IT IS ORDERED that plaintiff United States' Motion for Partial Summary Judgment against defendant Bishop is granted as to the strict liability standard under CERCLA and is granted as to Bishop's seventh affirmative defense.

IT IS FURTHER ORDERED that plaintiff United States' Motion for Partial Summary Judgment against defendant Bishop is denied in all other respects.