United States v. Medley

No. 7:86-252-3 (D.S.C. July 1, 1986)

On a motion for summary judgment between third party defendants to the government's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 action for reimbursement of response costs incurred in connection with the cleanup of the Medley Farm site in South Carolina, the court holds that CERCLA provides for a right of contribution among joint tortfeasors. The court first holds that CERCLA § 107(e)(2) implicitly provides for a right to contribution among parties that are jointly and severally liable, and that when viewed in its contemporary legal context, a right to contribution is a necessary adjunct to a broad-based, no-fault liability scheme. The federal common law of liability under § 107, the court notes, provides for joint and several liability and that this includes a right for defendants to bring contribution actions. The court holds that CERCLA itself does not express the scope and manner of providing contribution, however, but that this remedy is for the courts to determine. The court accordingly reserves this question for resolution at trial as a mixed question of law and fact.

[Related opinions appear at 17 ELR 20297 and 20299.]

Counsel are listed at 17 ELR 20297.

[17 ELR 20299]

Anderson, J.:

Order Denying Third-Party Defendants' Motion for Summary Judgment Against Third-Party Plaintiffs' Milliken & Company and National Starch and Chemical Corporation

Introduction

This matter has come before the court on the motion of third-party defendants, ABCO Industries, Inc., BASF Corporation, Polymer Industries, a division of Morton-Thiokol, Inc., and Tanner Chemical Company, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment or, in the alternative, [17 ELR 20300] for partial summary judgment against third-party plaintiffs Milliken & Company and National Starch and Chemical Corporation's claim for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq.

As grounds for their motion, the third-party defendants assert that CERCLA does not provide for a right to contribution between joint tortfeasors, or in the alternative, that if contribution is available under CERCLA, the right to contribution is several, rather than joint and several. Third-party plaintiffs opposed the motion for summary judgment and third-party plaintiff Milliken & Company opposed the partial motion for summary judgment. Plaintiff, United States of America, although not directly affected by the motion, opposed the third-party defendants' motion for summary judgment. The parties opposing the motion assert that CERCLA does provide for a right to contribution between joint tortfeasors.

This action was instituted by plaintiff United States pursuant to Sections 104 and 107 of CERCLA, 42 U.S.C. § 9601, § 9607 for recovery of costs incurred and to be incurred by the United States in response to the release or threatened release of hazardous substances from a waste disposal facility known as the Medley Farm site. Defendants Milliken & Company and National Starch and Chemical Company filed third-party complaints against the third-party defendants alleging a right to contribution under CERCLA.

Section 107(e)(2) of CERCLA, 42 U.S.C. § 9607(e)(2) provides that:

Nothing in this subchapter, including the provisions of paragraph (1) of this subsection, shall bar a cause of action that an owner or operator or other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.

Id.

In Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 30-31 [15 ELR 20346] (E.D. Mo. 1985), the court cited this section of CERCLA and noted that CERCLA implicitly recognizes a right to contribution. Similarly, in Colorado v. ASARCO, 608 F. Supp. 1484, 1486-92 [15 ELR 20523] (D. Colo. 1985) the court concluded, after a thorough review of CERCLA's legislative history, that 42 U.S.C. § 9607(e)(2) implicitly provided for a right to contribution. Judge Simons, in United States v. South Carolina Recycling and Disposal, Inc., 20 ERC 1753, 1759 n.8 [14 ELR 20272] (D.S.C. 1984) noted with approval the court's reasoning in United States v. Chem-Dyne Corp., 572 F. Supp. 802 [13 ELR 20986] (S.D. Ohio 1983), that Section 107(e)(2) permits actions for contribution among parties held jointly and severally liable.

Congress, in enacting CERCLA, was aware that the great majority of states permit a right of contribution where joint and several liability exists. In fact, eighty percent of states have recognized this right. United States v. Conservation Chemical Co., 619 F. Supp. 162, 226 [16 ELR 20193] (W.D. Mo. 1985). Congressional action in adopting CERCLA should be viewed in its "contemporary legal context." Cannon v. University of Chicago, 441 U.S. 677, 698-99 (1979). Clearly, Congress knew and understood that in contemporary circumstances, a right to contribution is a necessary adjunct to the imposition of a broad-based, no-fault liability scheme.

Judge Simons, in dicta in United States v. South Carolina Recycling and Disposal, Inc., 20 ERC 1753, 1759 n.8 [14 ELR 20272] (D.S.C. 1984) found that CERCLA had a right to contribution under federal common law and rejected the use of state common law on contribution because of the need for uniformity. Federal district courts which have reached the question of contribution have uniformly held that under federal common law, CERCLA provides for a right to contribution. See e.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802 [13 ELR 20986] (S.D. Ohio 1983).

In Colorado v. ASARCO, 608 F. Supp. 1484 [15 ELR 20523] (D. Colo. 1985) the court concluded that Congress had empowered the courts to establish a federal common law of liability under Section 107 of CERCLA. The court noted that the right to bring contribution actions is a necessary part of applying the standard of joint and several liability in tort cases. Judge Carrigan noted:

Once cleanup is assured . . . no goal of CERCLA would be promoted by requiring one of the responsible parties to bear the full cost of injuries caused in part by others.

Id. at 1491.

Similarly, the following district courts have expressly or impliedly stated the availability of a right to contribution under CERCLA. See e.g., Wehner v. Syntex Agribusiness Corp., 616 F. Supp. 27, 30-31 [15 ELR 20346] (E.D. Mo. 1985); Mola Development Corp. v. United States, 22 ERC 1443 [15 ELR 21029] (D.C. Cal. 1985); New York v. Shore Realty Corp., 21 ERC 1430 (E.D.N.Y. 1984); United States v. A&F Materials Co., Inc., 578 F. Supp. 1249, 1261 [14 ELR 20105] (S.D. Ill. 1984); United States v. Chem-Dyne, 572 F. Supp. 802, 807 n.3 [13 ELR 20986] (S.D. Ohio 1983); United States v. Northeastern Pharmaceutical and Chemical Co., Inc., 579 F. Supp. 823, 845 n.26 [14 ELR 20212] (W.D. Mo. 1984); United States v. Price, 20 ERC 2229 [14 ELR 20501] (D.N.J. 1984); United States v. Ward, 22 ERC 1235 [14 ELR 20804] (E.D.N.C. 1984).

CERCLA does not express the scope and manner of providing contribution. It is for the court to fashion this remedy. In order to determine this remedy, the court will need to have the pertinent facts before it in order to make its determination as to relative fault. Accordingly, the right and manner of contribution should await resolution at trial. As noted by Judge Simons in United States v. South Carolina Recycling and Disposal, Inc., 20 ERC 1753, 1759 n.8:

[Q]uestions of determining "equitable shares of the liability" with respect to an indivisible injury are appropriately resolved . . . after plaintiff has been made whole.

Conclusion

Because CERCLA provides for a right to contribution among joint tortfeasors as a matter of law, third-party defendants' motion for summary judgment must be denied. The third-party defendants' motion for partial summary judgment presents a mixed question of law and fact which should await resolution at trial.

WHEREFORE, IT IS ORDERED that third-party defendants' motion for summary judgment against third-party plaintiffs is DENIED.

IT IS FURTHER ORDERED that the ruling on third-party defendants' motion for partial summary judgment is reserved until trial.