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CONTINENTAL TITLE CO. v. PEOPLES GAS LIGHT & COKE

March 26, 1997

CONTINENTAL TITLE COMPANY, Plaintiff,
v.
THE PEOPLES GAS LIGHT AND COKE COMPANY, Defendant.



The opinion of the court was delivered by: NORDBERG

 Plaintiff Continental Title Company ("Continental") brings a three-count Complaint against Defendant The Peoples Gas Light and Coke Company ("Peoples Gas") pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the common law of the State of Illinois governing restitution. This action arises from the release of hazardous substances at a site presently owned by Continental and formerly owned by Peoples Gas, who is allegedly responsible for the release of hazardous substances. Peoples Gas owned and operated a manufactured gas plant at the site from approximately 1894 until 1930. CERCLA was enacted in 1980. Plaintiff seeks to recover its necessary response costs pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and concedes that application of CERCLA to Peoples Gas would have a retroactive effect. Presently before the Court is Defendant's Motion to Dismiss on the grounds that (1) Section 107(a) of CERCLA does not apply retroactively and (2) retroactive application against Peoples Gas would deprive it of due process.

 ANALYSIS

 I. RETROACTIVITY

 This Court finds that Section 107(a) of CERCLA applies retroactively and, in doing so, follows the highly persuasive analyses in Ninth Avenue Remedial Group v. Allis Chalmers, 946 F. Supp. 651 (N.D. Ind. 1996), Nova Chemicals, Inc. v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996), and State of Nevada v. United States, 925 F. Supp. 691 (D. Nev. 1996), as well every other court to consider the issue, with one recent exception, United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996). Significantly, as this Court was in the process of entering this Opinion, the Eleventh Circuit reversed the district court's decision in Olin, 107 F.3d 1506, 1997 WL 104161 (11th Cir. Mar. 25, 1997). Accordingly, this Opinion does not otherwise reference the Eleventh Circuit's decision.

 Courts have long viewed Section 107(a) as retroactive. See, e.g., O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989), cert. denied sub nom. American Cyanamid Co. v. O'Neil, 493 U.S. 1071, 107 L. Ed. 2d 1022, 110 S. Ct. 1115 (1990); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986). Indeed, the Seventh Circuit recently rejected a due process attack on a lengthy retroactive provision of the Coal Industry Retiree Health Benefit Act of 1992 because "the proposition that the degree of retroactivity itself violates the Due Process Clause . . . would ignore precedent upholding the unlimited retroactive reach of [CERCLA]." Davon, Inc. v. Shalala, 75 F.3d 1114, 1126 (7th Cir.), cert. denied, 117 S. Ct. 50 (1996). However, the Olin court found that the Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) required it to disregard this well-established jurisprudence, finding that Landgraf "demolished the interpretive premises on which prior cases had concluded CERCLA is retroactive." 927 F. Supp. at 1508. While Olin has triggered a flurry of decisions on the issue, it has not acquired a following. On the contrary, every decision in Olin's wake has found Landgraf to support the settled retroactivity of Section 107(a). Ninth Avenue, 946 F. Supp. 651 (N.D. Ind. 1996); Nova, 945 F. Supp. 1098 (E.D. Tenn. 1996); United States v. Alcan Aluminum Corp., 1996 U.S. Dist. LEXIS 16358, 1996 WL 637559 (N.D.N.Y. Oct. 28, 1996); Cooper Indus. Inc. v. Agway Inc., 1996 U.S. Dist. LEXIS 14196, 1996 WL 550128 (N.D.N.Y. Sept. 23, 1996); Gould v. A & M Battery & Tire Service, 933 F. Supp. 431 (M.D. Pa. 1996); Nevada, 925 F. Supp. 691 (D. Nev. 1996).

 A. Landgraf Standard

 In deciding whether the right to recover compensatory and punitive damages created by the Civil Rights Act of 1991 applies to conduct that occurred, and to cases that were filed, before the Act's effective date, the Landgraf Court explained that the "first task [of a court faced with a retroactivity inquiry] is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules." 114 S. Ct. at 1505.

 Section 107(a) of CERCLA provides in pertinent part:

 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
. . . .
 
(4) . . . from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for-
 
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
 
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan . . . .

 42 U.S.C. § 9607(a). The statute does not expressly prescribe the reach of Section 107(a), except that "There shall be no recovery under the authority of subparagraph (C) of subsection (a) of this section where such damages [i.e., damages for injury to, destruction of, or loss of natural resources] and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980." 42 U.S.C. § 9607(f). Likewise, as agreed to by the parties, application of the statute to Peoples Gas would have a retroactive effect, in answer to the second step of the Supreme Court's inquiry. Finally, the Supreme Court explained that "if the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Thus, the only task left for this Court is to determine whether clear congressional intent exists as to retroactive liability for response costs. Plaintiff submits that Congress' intent is clearly evidenced by the statutory language and by the legislative history.

 B. CERCLA's Text


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