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
I. ETS'S MOTION FOR SUMMARY JUDGMENT
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 § 9607(b). ENSCO does not argue that any of these
defenses apply to this case, nor does it appear that it could
Thus, as an initial matter, ENSCO is, under the terms of
CERCLA, liable to ETS for contribution ETS's Motion for
Summary Judgment on this issue is therefore granted. However,
the issue of how much ENSCO is liable for is another matter. It
is this issue which is addressed in ENSCO's Motion for Summary
II. ENSCO'S MOTION FOR SUMMARY JUDGMENT
ENSCO's Motion for Summary Judgment argues that the facts of
record establish that ETS was 100% at fault for the accident
and resulting spill and therefore should be held responsible
for the full cost of the clean up. In support of this
argument, ENSCO cites to § 9613(f)(1) of CERCLA which instructs
that the court in contribution action should apportion clean up
costs equitably. In response, ETS argues that there is evidence
that ENSCO and/or NSP were at least partially responsible for
the PCB spill, and that since there is no way to fairly
allocate response costs, the expense should be divided equally
between the three parties.
Section 9613(f)(1) of CERCLA states that, "[i]n resolving
contribution claims, the court may allocate response costs
among liable parties using such equitable factors as the court
determines are appropriate." Thus, it is apparent that a
finding that a defendant is a "responsible party" under §
9607(a), as this Court decided ENSCO was in section I above, is
only the initial inquiry. Finding that a defendant is a
responsible party and thus strictly liable for contribution
under § 9607(a) does not mean that all parties are equally
responsible and should share costs on a pro rata basis. Rather,
such a finding means only that a defendant is potentially
liable for contribution under CERCLA depending upon the
relative fault of the parties. Once a defendant is found to be
a responsible party under § 9607(a), the question shifts to how
much is that defendant responsible for under the provisions in
§ 9613(f)(1). Thus, ETS's request for an automatic pro rata
assessment is rejected as patently inconsistent with the
dictates of CERCLA.
Section 9613 contemplates a court's assessing the "relative
culpability of each responsible party in determining the
proportionate share of costs each must bear." United States v.
Monsanto Co., 858 F.2d 160, 170 n. 29 (4th Cir. 1988). See also
Versatile Metals v. Union Corp., 693 F. Supp. 1563, 1572
(E.D.Pa. 1988) ("relative fault will be considered in this
court's apportionment of necessary response costs"). ENSCO's
Cross-Motion for Summary Judgment argues that the facts
demonstrate that ETS and its driver were 100% at fault for the
accident and resulting spill
and therefore, under § 9613(f), it should bear 100% of the
response costs. The following summarizes the evidence in the
record pointed to by ENSCO and NSP supporting the proposition
that ETS was entirely at fault for the accident and spill.
1. The accident report prepared at the accident
scene by Illinois State Trooper Robert Wills
indicates that the suggested speed limit on
the ramp where the accident occurred is 30
miles per hour.
2. The ETS truck driver, Ronald Fresh, told
Trooper Wills that he came onto the ramp "too
3. Trooper Wills issued to Fresh a citation for
driving too fast for conditions.
4. Fresh later pleaded guilty to the charges of
driving too fast for conditions.
5. Fresh also told Harry Bray, an NSP manager,
that he was driving too fast on the ramp to
keep the rig in control.
6. ETS admitted, through its former president
Charles Crafton, that the driver Ronald Fresh
was at fault for the accident.
7. ETS admitted, through its vice-president
David Kennedy, that the "sole cause" of the
accident was that the driver was driving too
fast and that ETS is therefore the only party
responsible for the accident and spill.
ETS responds to this evidence with two arguments. First, it
argues that Ronald Fresh also made a statement that it was the
improper loading and weight distribution of the PCB
transformers which really caused the truck to overturn.
Secondly, ETS argues that even if it was responsible for the
accident, the spill itself was at least partially caused by
ENSCO's failure to comply with federal regulations regarding
transportation of hazardous materials.
In support of its argument that there is evidence in the
record supporting the theory that ETS and its driver were not
solely responsible for the accident, ETS points to a telephone
interview with the driver, Ronald Fresh, taken on November 9,
1984. In that interview, Fresh stated:
Q: All right, and from that point tell me what
A: Okay, it was after dark, at, at that time of
the year, it was it was extremely dark, I, I
got on the interchange or the entrance ramp
and it was not lighted. The curves that were
there were also not marked, also it had an
extremely low shoulder of about 6 inches
which was not posted. I went into an "S"
curve, not knowing that the "S" curve was
there, I negotiated the first curve, let my
unit drift to the high side of the curve in
anticipation of the road going ahead and
leveling out and going on to the interchange
I was trying to get to.
A: When I did, I let it drift high, when I
drifted it high, I was on the high side of
the second curve, couldn't negotiate it. I
attempted to run along the shoulder, as soon
as the truck dropped off the shoulder, it was
veered to the right, at that point II, I had
of course I had applied my brakes, I tried to
apply the trailer brakes only at the time in
order to try to keep the load from shifting
with the top heavy load, these transformers,
we're talking about 13 feet in the air from
the ground, not from my trailer but from the
A: To keep them from shifting and forcing me to
roll over, I tried, I attempted to drive out
into the field. I had not, did not realize
that the, it had rained that heavily up there
and it was that muddy. As soon as my tractor
broke off of the concrete and went into the
mud, well it just buried up forcing the load
to just roll me over on the passenger side of
tractor and trailer.
When considered in the context of ENSCO's evidence, these
statements do not create a genuine issue of fact over what
caused the accident. The same Ronald
Fresh also told the Illinois State Trooper minutes after the
accident that the truck tipped over because he was going too
fast on the ramp to handle the curve. Most importantly, the
text of the statements above do not indicate, as ETS suggests,
that the way the PCB transformers were loaded actually caused
the truck to tip over. Rather, those statements say only that,
once Fresh had driven off the pavement due to his excessive
speed, the momentum of the heavy trailer rig tipped his truck
over. Thus, it is clear that the evidence of record could only
support a finding that ETS and its driver were solely at fault
for the accident itself.
ETS's second argument is that, even if it was entirely at
fault for the accident, it was not entirely responsible for
the PCB spill. ETS argues that the cause of the spill is at
least partially attributable to the improper packaging of PCBs
and the improper loading of the transformers onto the truck.
ETS does not refer to any expert testimony or lay opinion to
support this position. Instead, it cites to Department of
Transportation ("DOT") regulations, found at 49 C.F.R. Part
173.12, which set forth requirements for the transportation of
hazardous materials. ENSCO replies to this argument in two
ways: First, ENSCO asserts that ETS was responsible for
providing the shipping equipment and for loading the
transformers onto the truck and therefore that any violation
of federal regulations is attributable only to ETS; secondly,
ENSCO asserts that, assuming ENSCO was responsible for loading
the transformers and supplying the shipping equipment, such
activities were governed by certain Environmental Protection
Agency ("EPA") regulations, found at 40 C.F.R. Part 761.20,
with which it fully complied. Because this Court agrees with
ENSCO that the EPA regulations, and not the DOT regulations,
govern the transportation of PCBs here, and because this Court
agrees that those EPA regulations were complied with, ETS's
argument that ENSCO is partially at fault for the spill due to
non-compliance with federal regulations is rejected.
The Transportation Safety Act of 1974, codified at 49 U.S.C.
App. § 1801 et seq. authorized the DOT in § 1804 to promulgate
regulations prescribing methods for the safe transportation of
hazardous materials, presumably including PCBs. Pursuant to
this congressional directive, the DOT promulgated regulations
which ETS claims that ENSCO violated. However, the Toxic
Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.
passed in 1986, which generally dealt with the production and
disposal of toxic substances, contains a section which singles
out PCBs and directs the Environmental Protection Agency
("EPA") to promulgate rules regarding the disposal and
"distribution in commerce" of PCBs. See 15 U.S.C. § 2605(e)(1).
Pursuant to this enabling statute, the EPA promulgated
Because of the existence of both the DOT regulations and the
EPA regulations on what happens to be the same subject, it is
not immediately clear what Congress intended regarding the
regulation of transportation of PCBs for the purposes of
disposal. Did Congress intend that the DOT regulations
regarding transportation of hazardous materials should apply
to the fact situation in this case? Did it intend that the EPA
regulations regarding disposal and distribution in commerce of
PCBs should apply to the fact situation here? Or did Congress
intend for both to apply simultaneously? Given that the DOT
and the EPA regulations command different conduct, it would
seem that it was not anticipated that the two would function
together. This suspicion is bolstered by the fact that neither
statute makes reference to the other. The only cross-reference
cited by the parties appears in the DOT regulations at
49 C.F.R. § 173.510(a)(1), which states that the EPA regulations
control packaging of PCBs.
Clearly, to the extent that the regulations complement each
other, or at least, do not conflict, both apply. But here
there is a conflict — the DOT regulations found at
49 C.F.R. § 173.12 versus the EPA regulations found at 40 C.F.R. § 761.20.
The issue then becomes, faced with this conflict, which
regulation applies. On the one hand, the DOT regulations were
by Congress to control the transportation of all hazardous
substances, presumably including PCBs. 49 U.S.C. App. § 1804.
On the other hand, the EPA regulations were authorized by
Congress to govern all aspects of PCB distribution and
disposal, presumably including transportation in the course of
disposal. 15 U.S.C. § 2605(e)(1). ETS argues that the conflict
should be resolved in favor of the DOT regulations, since those
regulations specifically deal with the activity of
transportation of hazardous materials, which is what is
involved here. ENSCO argues that the EPA regulations are more
on point, since they specifically deal with all aspects of
PCBs, the hazardous material at issue here. While the answer to
this question is not entirely clear to the Court, it is this
Court's finding that the regulations promulgated by the EPA
pursuant to TSCA more closely relate to the transportation of
PCBs by ETS and therefore those regulations preempt the
application of the DOT regulations.
The fact that the TSCA was enacted after the Transportation
Safety Act lends some support to the idea that the TSCA's
rules regarding PCBs supersede those found in the TSCA. When
two statutes are seemingly in conflict, a common rule of
statutory construction is to give effect to that statute which
came later in time.
Moreover, there is substantive support for the notion that,
when it came to PCBs, the Congress which drafted the TSCA in
1976 intended that a completely separate and specific set of
rules would apply. The legislative history of TSCA indicates
that Congress was seriously concerned about the threat posed
by PCBs and wished to single them out for separate attention.
As the Circuit Court of Appeals for the District of Columbia
noted when considering § 2605 of the TSCA:
Considering that there are few statutes aimed so
particularly at control of an individual
chemical, we construe this provision as a
significant comment on the failure of existing
Environmental Defense Fund v. EPA, 598 F.2d 62, 67 (D.C. Cir.
1978). In a footnote in that same opinion, the Circuit Court
for the District of Columbia referred to the statement of the
senator who drafted the PCB section of TSCA.
Senator Nelson, who introduced the amendment that
created § 6(e), 15 U.S.C. § 2605(e) (1976), stated
that "[i]t is preferable not to enact legislation
on a substance-by-substance basis but rather
generically, as the Toxic Substances bill proposes
to do. However, the PCB problem shows no sign of
abating and it has become so severe that it is
necessary to address the problem head-on, as we
were forced to do with DDT." (Citations omitted).
Id. The Circuit Court for the District of Columbia later noted
that the House of Representatives expressed similar concerns
when supporting the passage of that section of the TSCA. Env.
Def. Fund v. Env. Prot. Agency, 636 F.2d 1267, 1271 (D.C. Cir.
1980). See also Potomac Elec. Power Co. v. Sachs, 639 F. Supp. 856,
857 (D.Md. 1986).