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April 24, 1991


The opinion of the court was delivered by: Mihm, District Judge.

  Before the Court are Cross-Motions for Summary Judgment. For the reasons set forth below, each of these Motions is granted in part and denied in part.


In 1984 the Defendant Northern States Power ("NSP") decided to dispose of certain hazardous or toxic chemicals being stored at its plant near Minneapolis, Minnesota. The hazardous chemicals were polychlorinated biphenyls ("PCBs") and were stored in large drums called "transformers." NSP contracted with Defendant ENSCO, Inc. ("ENSCO") for the removal and disposal of the transformers and the PCBs they contained. ENSCO was to transport the PCB transformers from Minneapolis to a facility in Tennessee, where they would be drained and flushed. The PCBs would then be incinerated and the empty transformers would be disposed of in a landfill.

ENSCO subcontracted the transportation portion of the disposal contract to the Plaintiff Environmental Transportation Systems, Inc. ("ETS"). Under this agreement, ETS was to haul the full transformers by truck from Minneapolis to the ENSCO disposal site in Tennessee, where ENSCO would then dispose of the materials. On November 9, 1984, an ETS flatbed truck was hauling three PCB transformers on this route, but never made it to Tennessee. While driving on the interchange ramp which connects I-74 with I-80 near Moline, Illinois, the ETS truck drove off the ramp and tipped over. When the truck tipped over, one or more of the transformers ruptured, resulting in a spill of the PCBs. No other vehicles were involved in the accident.

The driver of the truck notified ETS, which in turn, through its president, notified ENSCO. ETS requested that ENSCO perform a clean up operation for the spill and further agreed to reimburse ENSCO for all expenses it incurred in conducting the clean up. After the clean up was completed and ENSCO was paid for the job, ETS submitted a claim for the clean up costs to its insurer, the Plaintiff Canal Insurance Company ("Canal"). Canal refused to cover the costs and litigation ensued. A settlement was eventually reached whereby ETS and Canal each covered one-half of the clean up costs. ETS and Canal then joined forces and brought this contribution action against ENSCO and NSP.

This action was brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., which provides for contribution actions between private parties involved in chemical spills. ETS and ENSCO filed Cross-Motions for Summary Judgment. ETS's summary judgment motion sought a determination that ENSCO and NSP were strictly liable for contribution under CERCLA. ENSCO's Motion for Summary Judgment sought a finding that ETS was entirely responsible for the accident and resulting spill and therefore not entitled to contribution from any other parties. This Court held two hearings on these motions at which counsel for each side made oral arguments in further support of their respective Motions for Summary Judgment. The following discussion represents this Court's disposition of all issues raised.



ETS's Motion for Summary Judgment argues that CERCLA makes ENSCO and NSP strictly liable for contribution and that all three responsible parties should be held responsible for the clean up costs on a pro rata basis. ENSCO responds that it should not be held liable for any contribution under CERCLA, first because ETS waived its right to contributions by agreeing to shoulder the clean up costs, and second, because ETS did not file its contribution action within the applicable statute of limitations period. ENSCO does not respond to ETS's argument that the prerequisites for contribution liability have been met under CERCLA. Instead, it refers to an argument made earlier in support of its Motion to Dismiss as stating and preserving its views on this subject. For the reasons that follow, this Court finds that ENSCO is liable for contribution. The percentage of clean up costs it is liable for, however, is another issued saved for section II below.

CERCLA automatically provides for contribution liability if a four-part test is met: (1) the site in question is a "facility" as defined by CERCLA; (2) the Defendant is a "responsible person" for the spill as defined by CERCLA; (3) there was a release of hazardous substances; and (4) such release caused the Plaintiff to incur response costs. 42 U.S.C. § 9607(a). See also United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373, 1378-79 (8th Cir. 1989). This four-part test has been satisfied here.

We are dealing here with a facility as defined by CERCLA. The transformers which held the PCBs, the ETS truck which hauled the transformers, and the area of land which suffered the spill all clearly fall within the definition of "facility" as defined in CERCLA. Section 9601(9)(A) of CERCLA defines "facility" to include "storage containers," "motor vehicle," and "areas" where hazardous substances are located. Secondly, the Defendants ENSCO and NSP are "responsible persons" as defined by CERCLA. Section 9607(a)(3) defines "responsible persons" as including those who contract for disposal or contract for transport for disposal of hazardous substances. ENSCO and NSP undoubtedly fit this category. The third requirement, that there was a spill or release of hazardous substances, has undeniably been satisfied. The final requirement that the release caused the Plaintiff to incur response costs has been satisfied because both ETS and its insurer have incurred such response costs. Accordingly, the four elements which set forth a prima facie case for contribution liability under CERCLA have all been met and therefore ENSCO is seemingly liable.

While it does not dispute that ETS has set forth a prima facie case for contribution liability under CERCLA, ENSCO argues that ETS's action is barred since it was not timely filed. ENSCO points to the CERCLA statute of limitations provision found in § 9613(g) which requires that a contribution action must be brought within three years of the completion of the clean up. The parties agree that the clean up here was finished on May 14, 1985. Since ETS did not file until January 4, 1989, about three and one-half years later, ENSCO argues that ETS's claim must fail. However, this argument is without merit because the statute of limitations provision was added to CERCLA after the accident and clean up in this case occurred.

The original version of CERCLA contained no statute of limitations provision. See United States v. Moore, 698 F. Supp. 622, 625 (E.D.Va. 1988). The statute of limitations provision referred to above was added in the course of the 1986 Superfund Amendments and Reauthorization Act ("SARA"), Pub.L. No. 99-499, which became effective law on October 17, 1986. Where a statutory amendment imposes a limitations provision on a cause of action where none had previously existed, the period will begin to run for pre-existing claims on the effective date of the amendment. Superior Engraving Co. v. National Labor Relations Board, 183 F.2d 783, 789 (7th Cir. 1950). See also T & E Industries, Inc. v. Safety Light Corp., 680 F. Supp. 696, 704 (D.N.J. 1988). Thus, ETS had until October 17, 1989 to file its claim, and therefore, its January 4, 1989 filing was a timely commencement of this action.

ENSCO argues in the alternative that ETS waived its right to seek contribution under CERCLA because it agreed to fully reimburse ENSCO for the clean up costs. Having so promised, ENSCO argues, ETS is now estopped from asserting a right of contribution. This argument also is without merit.

ETS's promise to ENSCO to reimburse it for the clean up costs does not appear to be binding — ENSCO has failed to point to anything given to ETS as consideration for this promise. However, this issue need not be addressed substantively because waiver is not a valid defense to a CERCLA contribution action. Section 9607(a) clearly states that the only defenses available in a CERCLA recovery action are those enumerated in § ...

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