2. Motion of generator defendants to dismiss plaintiff's
claim for mandatory injunctive relief.
3. Motion of generator defendants to dismiss plaintiff's
claim for cost reimbursement under Superfund.
4. Motion of generator defendants to dismiss the complaint
in intervention of the State of Illinois.
5. Motion of defendant CAM-OR to dismiss for failure to sue
6. Motion of defendant Petrolite to dismiss for failure to
state a claim.
The subject of this dispute is a waste disposal site located
on West Cumberland Street, Greenup, Illinois. The government
alleges that from 1977 to 1980 over seven million gallons of
wastes were deposited at the Greenup facility and placed into
lagoons and tanks. The government alleges further that there
have been releases and discharges of hazardous substances into
the groundwater, adjacent fields, and into the nearby Embarras
River. The authors of the present motions, Aluminum Company of
America (Alcoa), Northern Petrochemical Company (NPC), CAM-OR,
Inc., Petrolite Corporation and McDonnell-Douglas Corporation,
herein referred to as the generator defendants, allegedly
arranged for the disposal of their wastes at the Greenup site.
The resolution of the motions before the Court depends in
part on the interpretation of three federal statutes. The
Resource Conservation & Recovery Act, 42 U.S.C. § 6901-6987,
is a regulatory statute authorizing the EPA to establish
prospective standards for dealing with hazardous wastes.
However, § 6973 of the Act gives the government authority to
bring abatement actions to protect the environment. The
government contends that under § 6973 it has stated a claim for
mandatory injunctive relief.
The government's claim under § 311 of FWPCA, 33 U.S.C. § 1321,
is also for injunctive relief. Section 311 contains an
abatement provision similar to § 6973 of RCRA. However, under §
311 the actual or threatened discharge must be into navigable
waters of the United States.
The government's third and most extensive federal claim is
under CERCLA, 42 U.S.C. § 9601 et seq. CERCLA was enacted to
provide a more comprehensive solution to the problem of
hazardous waste sites. Section 9606 contains an abatement
provision similar to those in RCRA and FWPCA. However, § 9604
and § 9607 establish a new approach to the hazardous waste
problem. Section 9604 authorizes the government to clean up
hazardous wastes by utilizing a 1.6 billion dollar fund, and §
9607 authorizes recoupment actions and defines who is liable
for the costs of the cleanup.
CERCLA was enacted because Congress realized there were
serious gaps in RCRA. H.R.Rep. No. 1016, 96th Cong. 2d Sess.,
pt. 1, 18, reprinted in 5 U.S.Code Cong. & Ad.News 6119, 6120
(1980); 126 Cong.Rec. H9459-60 (September 23, 1980). First,
RCRA does not apply to the thousands of dormant sites that are
not currently posing an imminent hazard. United States v.
Price, 557 F. Supp. 1103 (D.N.J. 1983). Secondly, Congress was
concerned about the difficulty in locating financially
responsible owners of hazardous waste sites. H.R.Rep. No. 1016
supra, at 22, reprinted in 5 U.S.Code Cong. & Ad.News at 6125
(1980). CERCLA authorizes the government to sue transporters
and generators of hazardous waste. The establishment of the
Superfund, which is funded primarily from taxes on the chemical
industry, and the inclusion of generators in the liability
provision of CERCLA, signals a clear legislative intent to
impose on the chemical industry financial responsibility under
I. JOINT AND SEVERAL LIABILITY UNDER CERCLA
CERCLA's liability provisions, 42 U.S.C. § 9607,
unfortunately do little more than declare who is liable under
the Act. The Act on its face does not address the difficult
questions presented when there are dozens, even hundreds, of
potentially liable parties. The characteristics of a typical
waste disposal site and the characteristics of the waste
disposal industry itself, make the issue of joint and several
liability a critical one. Due to commingling and chemical
reactions in tanks and lagoons, it will be very difficult if
not impossible in some cases for the government to prove which
generator is responsible for the leakage. The imposition of
joint and several liability will in effect put the burden on
defendants. Moreover, with joint and several liability, the
government will be able to recover its entire costs, including
costs actually caused by unknown or insolvent generators.
See 126 Cong.Rec. H9463-65 (daily ed. September 23, 1980.
Remarks of Representative Gore.)
A. Legislative History and Statutory Language
CERCLA was enacted on December 11, 1980 in the last days of
the 96th Congress. The final version of the Act was conceived
by an ad hoc committee of Senators who fashioned a last minute
compromise which enabled the Act to pass. As a result, the
statute was hastily and inadequately drafted.*fn1 The only
legislative history on the compromise is found in the floor
debates. 126 Cong.Rec. S14,962-15,009 (daily ed. November 24,
1980); 126 Cong.Rec. H11,786-802 (daily ed. December 13,
1980). Originally both Houses of Congress introduced bills
that provided for joint and several liability. H.R. 7020 and
S. 1480. The compromise that was enacted, however, eliminated
any reference to joint and several liability.
Defendants argue the elimination of the words joint and
several from the Act conclusively establishes Congressional
intent not to impose joint and several liability. However, the
floor debates on the compromise bill suggest that the deletion
of joint and several language does not necessarily prevent
imposition of a joint and several standard by the courts. Two
Senators spoke to the issue on the floor of the Senate,
Senator Randolph, one of the sponsors of the Act, and Senator
Helms, an opponent of the Act who eventually voted against it.
The positions taken by these Senators were inconsistent and
irreconciliable. Senator Randolph said the issue of joint and
several liability was "unresolved" and that courts should
determine the liability of joint tort-feasors "under common or
previous statutory law." 126 Cong.Rec. S14964 (daily ed.
November 24, 1980). Senator Helms, on the other hand, stated
that joint and several liability was precluded.
It is very clear from the language of the
Stafford-Randolph substitute itself, from the
legislative history, and from the liability
provisions of section 311 of the Federal Water
Pollution Control Act, that now the
Stafford-Randolph bill does not in and of itself
create joint and several liability. The
Government can sue a defendant under the bill
only for those costs and damages that it can
prove were caused by the defendant's conduct.
Id. at S15,004.