Missouri v. Independent Petrochemical Corp.

No. 83-2670 C (2) (E.D. Mo. December 15, 1986)

The court holds that the application of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to wholly intrastate hazardous waste disposal does not exceed Congress' power under the Commerce Clause and that CERCLA has not preempted the common law of nuisance. The court first rules that application of CERCLA to intrastate hazardous waste disposal does not violate the Commerce Clause, since Congress' finding that disposal of hazardous waste affects interstate commerce has a rational basis. The court next holds that Missouri law allows contribution among defendants whose joint negligence creates a public nuisance. The court holds that one defendant's impleader on the CERCLA count of two individual site operators is proper. Although the third-party defendants are not in the business of hazardous waste disposal and may not have known the soil they used as fill contained dioxin, liability under CERCLA is strict. The court also holds that the third-party defendants are the owners of a facility within the meaning of CERCLA § 101(9). Finally, the court holds that CERCLA has not preempted the common law of nuisance. A holding to the contrary would conflict with CERCLA § 114, which permits liability under state law, and the case law.

[Other opinions in this litigation appear at 15 ELR 20161; 16 ELR 20352; and 17 ELR 20241. Related opinions are published at 16 ELR 20361, 20368; and 17 ELR 21013.]

Counsel are listed at 17 ELR 20241.

[17 ELR 20958]

FILIPPINE, J.:

Memorandum and Order

This matter is before the Court on the motions of Russell Martin Bliss and Jerry-Russell Bliss, Inc. to dismiss the cross-claim of Independent Petrochemical Corporation (IPC), the motion of Northeastern Pharmaceutical and Chemical Company, Edwin Michaels and John Lee (collectively, NEPACCO) to dismiss, and for summary judgment on the cross-claim of IPC and the third-party defendants Harold and Valerie Minker's motion to dismiss and for summary judgment.

This litigation arises from the cleanup efforts of the State of Missouri in response to disposal of hazardous waste in Missouri. The State's two count complaint seeks recovery of response costs under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607 (CERCLA) and under the common law of nuisance. IPC has cross-claimed and impleaded third-party defendants. The motions before the Court are directed to the IPC pleadings.

The Bliss motion arguments, with the exception of the constitutional challenge to CERCLA have been considered in this Court's June 20, 1984 order. The Bliss defendants now argue that the application of CERCLA to a wholly intrastate hazardous waste disposal exceeds Congress' power under the Commerce Clause. Even assuming the conduct of the Bliss defendants was wholly intrastate, their arguments are without merit.

Congress' power to regulate commerce is very broad and "extends not only to 'the use of channels of interstate or foreign commerce' and to 'protection of the instrumentalities of interstate commerce . . . or persons or things in commerce, but also to activities affecting commerce.'" Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 276-77 [11 ELR 20569] (1980) quoting Perez v. United States, 402 U.S. 146, 150 (1971). Judicial review of legislation under the commerce power is limited to a determination of whether the activity regulated may rationally be found to affect interstate commerce. The Court holds that a finding [17 ELR 20959] that disposal of hazardous waste affects interstate commerce has a rational basis and that the regulation here is within the commerce power. See Hodel at 282 (upholding Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 201 et seq.).

The NEPACCO motion arguments with the exception of the issue of contribution and indemnity have been considered in this Court's June 20, 1984 order. Additionally, this Court has previously held that contribution among joint tortfeasors is available under CERCLA. Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 [15 ELR 20346] (E.D. Mo. 1985).

The remaining issue raised by the NEPACCO motion is the right to contribution on the nuisance claim. In 1978, Missouri abandoned its system of non-contractual indemnity between joint tortfeasors and adopted contribution between negligent joint tortfeasors based on relative fault. Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. 1978) (en banc). The cross-claim here alleges that the cross-claim defendants' negligence joined with IPC's conduct to cause the alleged nuisance. The Court is of the opinion that Missouri courts would permit contribution among defendants whose joint negligence creates a public nuisance.

The Minker motion is directed to IPC's third-party complaint. The Minkers indicate that their motion is one under Rule 12b(6) and Rule 56 but have not submitted any materials in support. The Court will treat the entire motion as one under Rule 12b(6). The standard for review of such a motion is well settled. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The Minkers argue that impleader on the CERCLA count is improper since there is no allegation that they knew that the soil they used as fill contained dioxin and since they are not in the business of disposing of hazardous waste. These arguments are without merit. Liability under CERCLA is strict liability. New York v. Shore Realty Corp., 759 F.2d 1032, 1042 [15 ELR 20358] (2d Cir. 1985). Further, a determination of plaintiff's knowledge would not be appropriate on a motion to dismiss.

The Minkers also argue that they did not own a facility as it is defined in CERCLA. 42 U.S.C. § 9601(9) provides,

facility means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publically owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

The allegations of the third party complaint clearly bring the Minkers within the broad definition of facility. The Court cannot say as a matter of law, on the pleadings, that the Minkers would come within the consumer product exception.

Finally, the Minkers argue that there is no right to contribution under CERCLA. As this Court stated in the discussion of the NEPACCO motion, contribution is allowed under CERCLA.

The Minkers also challenge the sufficiency of Count II relating to common law nuisance. First the Minkers assert that the third-party complaint does not allege that they created the nuisance or had any duty to abate the nuisance. The third-party complaint in paragraph 16 alleges that the nuisance alleged in plaintiff's complaint was the result of the concurrent intentional or negligent acts of the Minkers in using the contaminated soil for fill purposes. These allegations are clearly sufficient allegations of involvement on the part of the Minkers.

Second, the Minkers allege that there is no contribution among tortfeasors who jointly create a nuisance. This point is without merit for the reason set out in the discussion of the NEPACCO motion.

Finally, the Minkers argue that the common law of nuisance has been preempted by CERCLA. This is inconsistent with the language of the statute, 42 U.S.C. § 9614 (liability under state law not precluded) and case law. See Allied Towing v. Great Eastern Petroleum Corp., 642 F. Supp. 1339, 1351 (E.D. Va. 1986); New York v. United States, 620 F. Supp. 374, 385 [16 ELR 20142] (E.D.N.Y. 1985).

Accordingly,

IT IS HEREBY ORDERED that the motions of Russell Martin Bliss and Jerry-Russell Bliss, Inc. to dismiss the cross-claim of Independent Petrochemical Corporation, the motion of Northeastern Pharmaceutical and Chemical Company, Edwin Michaels and John Lee to dismiss, and for summary judgment on the cross-claim of Independent Petrochemical Corporation, and the third-party defendants Harold and Valorie Minker's motion to dismiss and for summary judgment are DENIED.