United States v. Bliss

No. 84-200C(1) (E.D. Mo. June 15, 1987)

The court summarily rejects various motions to dismiss in an action brought by the United States for injunctive relief and recovery of cleanup costs under §§ 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and § 7003 of the Resource Conservation and Recovery Act (RCRA). The court holds that retroactive application of CERCLA is constitutional and imposition of liability on past nonnegligent off-site generators and transporters under RCRA is not retroactive and does not violate due process. The court holds that defendants who had previously litigated various constitutional and statutory issues in another district court are barred by collateral estoppel from relitigating these issues. The court holds that it has personal jurisdiction over these defendants and Missouri is not an indispensable party. The court holds that the United States' pleadings state a claim under CERCLA and RCRA, no statute of limitations applies to suits under CERCLA, and a jury trial is not required for CERCLA cost recovery actions.

[A previous decision in this case appears at 16 ELR 20368.]

Counsel for Plaintiff
Jill Newman, Joseph Moore
Room 414, U.S. Court & Custom House, 1114 Market St., St. Louis MO 63101
(314) 425-5280

Counsel for Defendant
Russell Martin Bliss, pro se
Route 1, St. James Mo 65559

[17 ELR 21217]

Nangle, J.:

Order and Memorandum

IT IS HEREBY ORDERED that the motion of the United States to strike the demand of defendant Russell Bliss for a jury trial be and is granted.

IT IS FURTHER ORDERED that the demand of defendant Russell Bliss for a jury trial be and is stricken.

IT IS FURTHER ORDERED that the motions of defendants Russell Bliss and Jerry R. Bliss, Inc. to dismiss for failure to state a claim be and are denied.

IT IS FURTHER ORDERED that the motion of defendants Northeastern Pharmaceutical and Chemical Company, Michaels, and Lee to dismiss, to quash, and for summary judgment be and are denied.

IT IS FURTHER ORDERED that the motions of defendants Syntex Agribusiness, Syntex Corporation, Syntex Laboratories, and Syntex (USA) to dismiss be and are denied.

IT IS FURTHER ORDERED that the motion of defendant Syntex Agribusiness for oral argument be and is denied as moot.

In this action, the United States seeks injunctive relief and recovery of clean-up costs under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9606 and 9607, and Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6973, in connection with six sites in the Eastern District of Missouri. As the United States alleges, these sites are contaminated by hazardous substances and threaten the public health and environment.

The defendants have filed numerous motions to dismiss. These motions raise no novel questions of law and are addressed summarily below.

Retroactivity of CERCLA and RCRA

The Bliss defendants, Syntex defendants, and Northeastern Pharmaceutical and Chemical Company (NEPACCO) defendants challenge the constitutionality of CERCLA and RCRA as applied under the instant facts.¹ As these defendants argue, their acts were committed prior to the passage of these environmental statutes. Therefore, application of these statutes would be retroactive in violation of due process.

In United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726, 734 [17 ELR 20603] (8th Cir. 1986), the Eighth Circuit held that CERCLA may be applied to impose liability upon responsible parties for acts committed before the effective date of the statute without violating the due process or takings clauses of the Federal Constitution. In other words, retroactive application of CERCLA is constitutional. Similarly, the NEPACCO court held that RCRA may be used to impose liability upon past non-negligent off-site generators and transporters of hazardous waste and that such application of the statute is not retroactive and does not violate due process. NEPACCO, 810 F.2d at 741. Accordingly, the motions of the defendants to dismiss for failure to state a claim based upon retroactivity are denied.²

[17 ELR 21218]

NEPACCO Defendants

In addition to the retroactivity argument, the NEPACCO defendants raise collectively a number of grounds for dismissal. As these defendants argue: 1) Section 7003 of RCRA applies only to present, not past, releases; 2) Section 106 of CERCLA applies only to present, not past, releases; 3) Sections 104 and 107 of CERCLA cannot be used to impose liability for future costs; 4) the government fails to allege that its costs were reasonable and necessary as required by CERCLA; 5) these defendants are not liable for releases at sites selected by others; and 6) these defendants are not liable for releases caused by others. Because these issues were fully and fairly litigated and decided against these defendants in litigation in the Western District of Missouri, collateral estoppel bars relitigation of the issues here. For the same reason, NEPACCO is estopped from relitigating the issue of its capacity to be served with process and sued. Also, Michaels and Lee are estopped from relitigating whether they may be held personally liable and whether CERCLA requires possession of hazardous wastes to impose liability.

In addition, the NEPACCO defendants assert that this Court lacks personal jurisdiction over them. They fail to support this assertion with affidavits or other factual materials. Clearly, the manufacturing activities of NEPACCO within this state satisfy the first prong of the Missouri long-arm statute, Mo. Rev. Stat. § 506.500, and these activities gave rise to the instant cause of action. Moreover, these activities constitute purposeful contacts with this forum, such that the defendants should reasonably anticipate being hailed into court here. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Thus, exercise of personal jurisdiction over these defendants comports with due process.

As the NEPACCO defendants further argue, this action should be dismissed because the United States has failed to join an indispensible party, namely the State of Missouri. In the absence of the State of Missouri, NEPACCO argues, the corporation may be subject to double liability.

Under Fed. R. Civ. P. 19(a), "a person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . . . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest." Clause (ii) of Fed. R. Civ. P. 19(a) "recognizes the need for considering whether a party may be left, after the adjudication, in a position where a person not joined can subject him to a double or otherwise inconsistent liability." Notes of Advisory Committee on Rules, Rule 19. See also C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1602 (1986). Whether a person is an indispensible party depends upon the facts and circumstances of each case. Helzberg's Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 819 (8th Cir. 1977).

Here, NEPACCO will not be at risk of double liability if the United States proceeds without the State of Missouri as a party. Section 114(a) of CERCLA provides as follows: "Nothing in this act shall be construed or interpreted as preempting any State from imposing any additional liability with respect to the release of hazardous substances within such State." This section does not, however, subject the defendant to double liability. Rather, Section 114(a) permits a State to recover its own costs incurred due to the release of hazardous substances within the State. The United States does not seek to recover any costs incurred by Missouri. Therefore, this court will not order joinder of the State of Missouri nor will it dismiss for failure to join Missouri as a party.

The Bliss Defendants

The Bliss defendants have moved to dismiss, arguing that the pleadings fail to state a claim, the applicable statute of limitations has run, and the United States has failed to join an indispensible party.

Regarding the failure of the pleadings to state a claim, an examination of the complaint reveals that the statutory elements of CERCLA and RCRA have been satisfied. Accordingly, the complaint will not be dismissed for failure to state a claim. Regarding the statute of limitations, the defendants have not identified an applicable limitations period, nor does CERCLA provide such a period. Moreover, the defendants have failed to demonstrate that "Congress intended one of its independent, general statutes of limitations to apply to suits" under CERCLA. See United States v. City of Palm Beach Gardens, 635 F.2d 337, 340 (5th Cir. 1981). Accordingly, this action is not barred by a statute of limitations. Regarding the failure to join an indispensible party, the defendant refers specifically to the State of Missouri. As discussed above, this Court will not dismiss for failure to join the state.

Finally, defendant Russell Bliss has filed a motion for a trial by jury. In response, the United States filed a motion to strike the jury trial demand. Under CERCLA, claims to recover for costs incurred in the removal of hazardous wastes are considered restitution and are thus equitable in nature. Missouri v. Independent Petrochemical Corp., 22 ERC 1735, 1736 [15 ELR 20161] (E.D. Mo. 1985). Accordingly, the Seventh Amendment to the Federal Constitution does not guarantee a trial by jury. Therefore, the motion of the United States to strike Bliss' jury demand is granted.

1. For purposes of this memorandum, Northeastern Pharmaceutical and Chemical Company, Edwin Michaels, its President, and John Lee, its Vice-President are referred to collectively as the NEPACCO defendants. Similarly, the Syntex defendants include Syntex Agribusiness, Syntex Corporation, Syntex Laboratories, and Syntex (USA). The Bliss defendants include Russell Bliss and Jerry R. Bliss, Inc.

2. In addition to the precedential value of the NEPACCO decision, the judgment of the district court in that case bars relitigation of issues raised by the NEPACCO defendants. Parklane Hosiery v. Shore, 439 U.S. 322, 326 n. 5 (1979); Montana v. United States, 440 U.S. 147 (1979). In United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 833 [14 ELR 20212] (W.D. Mo. 1984), Judge Clark held that CERCLA applied retroactively, id. at 839, but that RCRA could not be applied to past non-negligent off-site generators and transporters. The Court of Appeals upheld the conclusion of the court as to CERCLA but reversed as to RCRA, holding that RCRA could be so applied. Thus, the issue of retroactivity under both statutes has been fully and fairly litigated by the NEPACCO defendants, and the doctrine of collateral estoppel bars relitigation by these defendants. Similarly, collateral estoppel bars relitigation by the NEPACCO defendants of several other issues raised in these motions to dismiss. Where collateral estoppel applies, its application is noted below.