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.
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 § ...