# United States v. Conservation Chemical Co.

> District Court, W.D. Missouri · July 2, 1985 · 619 F. Supp. 162

URL: https://www.frixlaw.com/law-library/cases/1797851

## Case

- **Full name:** UNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY, Norman B. Hjersted, Conservation Chemical Co. of Illinois, Armco Steel Corporation, FMC Corporation, International Business MacHines Corp., Western Electric Company, Inc., and Mobay Chemical Company, Defendants
- **Court:** District Court, W.D. Missouri
- **Decided:** July 2, 1985
- **Citations:** 619 F. Supp. 162; 24 ERC 1008; 16 Envtl. L. Rep. (Envtl. Law Inst.) 20193; 24 ERC (BNA) 1008; 1985 U.S. Dist. LEXIS 18276
- **Precedential status:** Published
- **Opinion:** Opinion by Wright
- **Judges:** Scott O. Wright
- **Cited by:** 207 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726 (1986).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1797851

## How later opinions describe it (automated extraction)

- concluding that “under CERCLA, a generator-defendant can reasonably anticipate being haled into court in any state in which hazardous substances, for which such generator-defendant has arranged for disposal or treatment or arranged with a transporter for disposal or treatment,…
- concluding as a matter of law that a site poses an imminent and substantial endangerment where, by defendant’s own estimates, 22,000 pounds of hazardous substances were being discharged into the Missouri River each year
- holding that CERCLA’s “[u]se of the disjunctive 'or’ mandates the conclusion that ... a possible endangerment to the environment alone, will warrant relief’
- noting that there is no requirement in CERLA that, to be liable as an arranger, "that the generator deliberately or intentionally transport waste or arrange for waste to be transported to a facility containing hazardous substances"
- holding that a CERCLA contribution right was implied in the statute’s language

## Opinion text

ORDER
SCOTT O. WRIGHT, Chief Judge.
On May 17,1985, the Special Master filed a report issuing recommendations concerning the appropriate disposition of eighty-two pending motions to dismiss or motions for summary judgment. By subsequent Court order, the Court directed that objections to the Special Master’s report submitted pursuant to Fed.R.Civ.P. 53 shall be filed by July 1, 1985. As required, the Court has independently reviewed the record regarding the issues relating to the Master’s report, including the relevant motions and responses thereto, and the objections filed to the report.
See United States v. Louisiana,
— U.S. —, 105 S.Ct.
*175
1074, 1080, 84 L.Ed.2d 73 (1985). Accordingly, the Court enters the following rulings in summary form, and, with respect to those recommendations approved by the Court, the Court hereby adopts the reasoning stated in the Master’s report in support of those recommendations. Recommendations of the Master not adopted by the Court will be so designated.
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
1. The plaintiff’s motion for partial summary judgment on liability issues under Sections 106(a) and 107(a) of CERCLA, 42 U.S.C. §§ 9606 (a) and 9607(a), and Section 7003 of RCRA, 42 U.S.C. § 6973—
A. The plaintiffs motion will be granted with respect to the following issues:
(1) The plaintiffs claim for recovery of response costs under CERCLA § 107 from defendant C.C.C. and CCCI. Over the Master’s recommendation, the Court will, however, allow C.C.C. and CCCI to contest the amount of those response costs at trial by attempting to meet their burden under 42 U.S.C. § 9607 (a) of establishing that those costs claimed are inconsistent with the National Contingency Plan;
(2) The plaintiff’s claim that an imminent and substantial endangerment to the public health or welfare or the environment exists at the C.C.C. site within the meaning of CERCLA § 106;
(3) The plaintiff’s request for injunctive relief against C.C.C. and CCCI to abate the endangerment under CERCLA § 106;
(4) The plaintiff’s claim that an imminent and substantial endangerment exists at the C.C.C. site within the meaning of RCRA § 7003;
(5) The plaintiff’s request for injunctive relief against C.C.C. to abate the endangerment under RCRA § 7003; and
(6) The scope of liability under RCRA § 7003 is joint and several unless the harm is found to be divisible.
B. The plaintiff’s motion for partial summary judgment is otherwise denied and the following issues, among others, are subject to continued litigation:
(1) The extent of the endangerment;
(2) Whether the plaintiff’s response costs are consistent with the National Contingency Plan;
(3) Whether the original generator defendants are liable with respect to the Government’s claims under CERCLA §§ 106 and 107, that is, whether the original generator defendants in fact shipped wastes to the C.C.C. site;
(4) With respect to the plaintiff’s claim under RCRA § 7003, whether the original generator defendants actually shipped waste to the C.C.C. site and whether these defendants contributed to the endangerment in terms of a causal connection;
(5) Whether the defendants are liable for response costs pursuant to this Court’s equitable discretion under RCRA § 7003;
(6) Whether the harm is indivisible; and
(7) The liability of Norman Hjersted.
2. The plaintiff’s motions for partial summary judgment against the defendants regarding defenses — The Court concludes the following as a matter of law:
(1) Although strict liability is applicable under CERCLA §§ 106 and 107, over the Master’s recommendation the Court concludes that CERCLA § 107(b) provides affirmative defenses to such liability;
(2) Equitable defenses are available under CERCLA;
(3) The plaintiff is not required to comply with the statutory prerequisites of CERCLA § 104 or CERCLA § 112(a) in order to obtain recovery under CERCLA §§ 106 and 107;
(4) The plaintiff’s claim under RCRA § 7003 is not barred because the plaintiff did not comply with the notice provisions of RCA § 3008, 42 U.S.C. § 6928 ;
*176
(5) The mere existence of an adequate remedy at law does not preclude in-junctive relief under CERCLA;
(6) The statute of limitations found in CERCLA § 112 is not applicable in this case, although the equitable doctrine of laches may be considered by the Court;
(7) The provisions of RCRA and CERC-LA are not facially unconstitutional; and
(8) The exception for mining wastes and fly ash found at CERCLA § 101(14)(C) applies only to subparagraph (C), and is not a general exception to the definition of “hazardous substances” under the remaining provisions of CERCLA § 101(14).
3. Motions for partial summary judgment regarding third-party plaintiffs right to contribution and third-party defendants’ joint and several liability—
The Court concludes the following as a matter of law:
(1) Under CERCLA, if the harm caused by the defendants is determined to be indivisible under the theory of joint several liability, a right of contribution exists against third-party defendants for costs of injunctive relief and response costs imposed on or incurred by the defendants; and
(2) The third-party defendants’ liability for contribution under CERCLA is several, but not joint and several, as liability for contribution does not extend beyond a tortfeasor’s equitable share of the liability.
4. Motions concerning the right of third-party plaintiffs to seek injunctive relief against third-party defendant generators—
The Court declares as a matter of law, consistent with the Special Master’s Report and Recommendation, that the right to seek injunctive relief under both RCRA and CERCLA is vested solely in the Government, therefore the Court has no jurisdiction to impose equitable remedies on third-party plaintiffs and counterclaim defendants.
5. The motions based on the theory of de minimis non curat lex—
Consistent with this Court’s prior ruling and with the Special Master’s Report and Recommendation, the Court declares that the application of the de minimis theory would be inconsistent with Congressional intent underlying RCRA and CERCLA, and therefore cannot be used as an absolute defense in this case.
6. Remaining issues presented in the pending motions: Consistent with the Master’s Report, the Court declares as follows:
(1) A generator is not absolved of liability under CERCLA simply because it did not select the disposal site, because ownership of waste was transferred to a transporter, because, by selecting a site, the transporter would also be liable under § 107(a)(4), or because the waste was initially transported to another site before being transferred to the ultimate site;
(2) The motion for summary judgment by Schwinn Bicycle Company regarding the § 107(b)(3) defense must be denied as material facts are in dispute, but the defense may be raised with evidentiary support at the Phase I hearing.
(3) The conclusions and recommendations contained in the following sections of the Special Master’s Report are adopted in their entirety:
(a) VIII. Miscellaneous generator liability issues—
(b) IX. Liability for hazardous substances sold to C.C.C. for treatment of other waste—
(c) X. In personam jurisdiction—
(d) XIII. Liability of KCP & L as past owner of C.C.C. site and as owner of facility.
7. Third-party generator defendant Wellman Dynamics Corporation’s motion for summary judgment on the issue of continued corporate liability — a ruling on this motion is deferred pending further
*177
consideration of Wellman Dynamics’ objections to the Special Master’s Report.
Accordingly, subject only to the expressed exceptions contained above, it is hereby
ORDERED that the Special Master’s Report filed May 17, 1985 is adopted. It is further
ORDERED that, subject to the exceptions contained above, the pending motions to dismiss and motions for summary judgment are ruled in accordance with the Master’s Report.
SPECIAL MASTER’S REPORT
ROBERT H. FREILICH, Special Master.
TABLE OF CONTENTS
INTRODUCTION ...............................................178
I. UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT OF LIABILITY PURSUANT TO SECTION 106(a) AND 107(a) OF CERCLA AND SECTION 7003 OF RCRA ...................................................181
II. THE UNITED STATES’ MOTIONS REGARDING DEFENSES .................................................202
III. THIRD-PARTY PLAINTIFFS’ RIGHT TO CONTRIBUTION UNDER CERCLA ..................................222
IV. THE ABILITY OF THE THIRD-PARTY PLAINTIFFS TO
OBTAIN INJUNCTIVE RELIEF AGAINST THE THIRD-PARTY DEFENDANT GENERATORS ....................230
V. ARGUMENTS BASED UPON THE PRINCIPLE OF DE
MINIMIS NON CURAT LEX .............................232
VI. SELECTION OF THE DISPOSAL SITE BY A GENERATOR IS NOT A PREREQUISITE TO LIABILITY ..........233
VII. THE THIRD-PARTY DEFENSE UNDER CERCLA SECTION 107(b)(3) ...........................................234
VIII. MISCELLANEOUS GENERATOR LIABILITY ISSUES ... 235
IX. LIABILTY FOR HAZARDOUS SUBSTANCES SOLD TO
CCC FOR TREATMENT OF OTHER WASTE .............237
X. IN PERSONAM JURISDICTION ..........................241
XI. MOTION OF FORD MOTOR COMPANY ..................250
XII. MOTION OF THE WELLMAN DYNAMICS CORPORATION ....................................................251
XIII. LIABILITY OF KCP&L AS PAST OWNER OF CCC CITE
AND AS AN OWNER OF A FACILITY ..................253
APPENDIX A — SUMMARY OF DISPOSITION OF MOTIONS
APPENDIX B — SPECIAL MASTER’S RECOMMENDATION CONCERNING THIRD-PARTY GENERATORS’ “DE MINIMIS” MOTIONS
*178
INTRODUCTION
Pending before the Court are eighty-two (82) motions to dismiss or motions for summary judgment concerning Phase One issues, other than insurance-related issues. Attached as Appendix A to this report is an alphabetical listing of parties who have filed motions, the Master’s recommendation on the disposition of such motions and the location or locations within the report where such motions are addressed.
As the Court is aware, on April 15, 1985, the Special Master filed his Recommendation Regarding Summary Judgment Motions or Motions to Dismiss (for Non-Insurance Issues), which recommendation suggested deadlines for filing motions, or for renewing consideration of motions which had been filed previously in the litigation, in order that disposition of those motions would be part of the Master’s Report to the Court. That recommendation was approved by Order of the Court on April 24, 1985, with the exception that the objection to the recommendation filed by the Kansas City Power & Light Company was sustained and the Kansas City Power & Light Company’s motion for summary judgment which was not submitted within the deadlines established in the Recommendation was deemed timely filed by the Court. No other parties filed objections to the recommendation and no party other than Kansas City Power & Light Company has received permission of the Court to have its motion considered if it did not comply with the deadlines established in the Recommendation. Therefore, of the eighty motions that are pending, five are not being considered in this report due to the fact that their filing or renewal did not comply with the deadlines established in that recommendation.
1
In addition, a considerable number of the motions that were filed were not considered by the Special Master for the reason that the motions did not comply with the requirements of Federal Rules of Civil Procedure, Rule 56, relating to summary judgment motions [or motions to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Fed. R.Civ.P. Rule 12(b)(6) which present matters outside the pleadings and are treated as motions for summary judgment].
2
A general discussion of the requirements of Rule 56 and the case law concerning summary judgment motions follows.
It should also be noted that application of the rules for summary judgment precludes approval of most of the motions that have been filed. Of the motions that should be denied on that basis, most present a straightforward question of fact or mixed fact and law (e.g., did XYZ Corporation ship its hazardous substances to the CCC site, or were XYZ Corporation’s substances hazardous?). Time and space prevent a discussion of the facts of all the motions. Therefore, motions which cannot be granted because there are material facts in dispute are, for the most part, dealt with in a footnote unless an important or novel question of law is also raised. However, the fact that a particular party’s motion is dealt with in a footnote does not mean that that motion was not given full and careful consideration. On the contrary, every motion which was considered (i.e., all except
*179
those which were untimely or not properly presented) was reviewed very carefully. Moreover, the fact that a motion is dealt with in a footnote is not a reflection of its relative merit. The evidence against many of the third-party defendants appears to fall into the “scintilla” category and, while sufficient to avoid summary judgment, will hardly be sufficient to establish liability at trial unless additional evidence is forthcoming.
The standard to be applied by the trial court in ruling upon a motion for summary judgment pursuant to Fed.R.Civ.P., Rule 56(e) has been clearly stated by the United States Supreme Court:
Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case “show that * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), Fed.Rules Civ.Proc. This rule authorizes summary judgment “only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * [and where] no genuine issue remains for trial * * * [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.”
Sartor v. Arkansas Nat. Gas. Corp.,
321 U.S. 620, 627 , 88 L.Ed. 967, 972 , 64 S.Ct. 724 [728] (1944).
Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464, 467 , 82 S.Ct. 486, 488 , 7 L.Ed.2d 458 (1962).
To obtain summary judgment, the mov-ant must demonstrate the absence of any genuine issue of material fact,
Snyder v. United States,
717 F.2d 1193, 1195 (8th Cir.1983), and that he is entitled to judgment as a matter of law. In determining whether or not the movant has met the heavy burden of proving the absence of any material fact, it is the duty of the trial court to scrutinize the evidence,
Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158 , 90 S.Ct. 1598, 1608 , 26 L.Ed.2d 142 (1970), in the light most favorable to the non-moving party,
Vette Co. v. Aetna Cas. & Sur. Co.,
612 F.2d 1076, 1077 (8th Cir.1980), according the non-movant the benefit of every reasonable factual inference,
Adickes v. S.H. Kress, supra; Bullerv. Buechler,
706 F.2d 844 (8th Cir.1983), and resolving all doubts as to the facts or the existence of any material fact against the moving party.
Adickes v. S.H. Kress & Co., supra; United States v. Diebold, Inc.,
369 U.S. 654, 655 , 82 S.Ct. 993, 994 , 8 L.Ed.2d 176 (1962). Summary judgment should be denied if there is even the slightest doubt as to a factual dispute or any genuine issue of material fact.
Clausen & Sons, Inc. v. Theo. Hamm Brewing Co.,
395 F.2d 388, 389 (8th Cir.1968).
The burden is on the party seeking judgment to establish the right to a judgment with such clarity as to leave no room for any doubt or controversy,
Westborough Mall, Inc. v. City of Cape Girardeau, Mo.,
693 F.2d 733, 737 (8th Cir.1982),
cert. denied sub nom. Drury v. Westborough Mall, Inc.,
461 U.S. 945 , 103 S.Ct. 2122 , 77 L.Ed.2d 1303 (1983);
Jewson v. Mayo Clinic,
691 F.2d 405, 408 (8th Cir. 1982);
Snell v. United States,
680 F.2d 545, 547 (8th Cir.),
cert. denied,
459 U.S. 989 , 103 S.Ct. 344 , 74 L.Ed.2d 384 (1982), and to prove that the nonmoving party is not entitled to recover under any discernable circumstances.
McGee v. Hester,
724 F.2d 89, 91 (8th Cir.1983);
Camfield Tires, Inc. v. Michelin Tire Corp.,
719 F.2d 1361, 1363-64 (8th Cir.1983). If the evidence presented to support or oppose the motion is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper,
Snyder v. United States,
717 F.2d 1193, 1195 (8th Cir.1983), and should likewise be denied where the affidavits or other sworn statements require an evaluative judgment between two rationally possible conclusions,
Minnis v. UAW,
531 F.2d 850, 854 (8th Cir.1975);
Chenette v. Trustees of Iowa College, Grinnell, la.,
431 F.2d 49, 53 (8th Cir.1970), even if the court is convinced that the evidence makes it unlikely that a party can prevail at trial.
Hughes v.
*180
American Jawa, Ltd.,
529 F.2d 21, 25 (8th Cir.1976).
The Eighth Circuit has repeatedly held that summary judgment is a drastic remedy. See,
e.g., Snell v. United States,
680 F.2d 545, 547 (8th Cir.),
cert. denied,
459 U.S. 989 , 103 S.Ct. 344 , 74 L.Ed.2d 384 (1982) (“This circuit has repeatedly emphasized the drastic nature of the summary judgment remedy”). It has also been labeled “extreme” and “treacherous” by the Eighth Circuit.
Vette Co. v. Aetna Cas. & Sur. Co.,
612 F.2d 1076, 1077 (8th Cir. 1980). The Court’s latest pronouncement in this regard,
Buford v. Tremayne,
747 F.2d 445 (8th Cir.1984), simply refers to the remedy as “drastic.” ( 747 F.2d at 447 ).
A number of motions which have been filed rely upon statements of counsel (both sworn and unsworn) to establish uncontroverted facts. However, Rule 56(e), Fed.R.Civ.P., requires that in determining the propriety of a motion for summary judgment facts be established or controverted by sworn statement of a competent witness. Arguments of or statements by counsel should not be considered to establish a fact. Rule 56(e) Fed.R.Civ.P. provides:
(3) Form of
Affidavits;
Further Testimony; Defense Required.
Supporting and opposing
affidavits
shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn
or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit
affidavits
to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but in his response, by
affidavit
or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added).
The Rule itself seems to clearly require sworn statements to support or oppose a motion for summary judgment. In
Ad-ickes v. S.H. Kress & Co., supra,
both plaintiff and defendant relied upon un-sworn statements to oppose and support a motion for summary judgment. The trial court granted summary judgment in favor of defendant, the Second Circuit affirmed and the Supreme Court granted
certiorari
and reversed. On the issue of the propriety of summary judgment, the Court noted that unsworn statements do not comply with the requirements of Rule 56(e), Fed.R. Civ.P. ( 398 U.S. at 158, n. 16 , 17 & 19, 90 S.Ct. at 1608, n. 16 , 17 & 19) and therefore should not be considered.
In
Jones v. Menard,
559 F.2d 1282 (5th Cir.1977), a crewman who had sustained back injuries brought suit against the ship’s owner and operator, who in turn filed third-party complaints against the ship’s builder and designer seeking indemnity and contribution. The trial court entered summary judgment. In reversing the trial court, the appeals court found that the affidavit and report proffered by mov-ants should not have been considered on the issue of whether the pipe was flawed because: (1) the report annexed to the affidavit was prepared by someone other than the affiant; (2) the author of the report was not qualified as an expert and, therefore, his report provided no proof of evidence that movant could have adduced at trial; and (3) the report satisfied none of the evidentiary requirements of Rule 56(e) in that it was not a sworn affidavit, an interrogatory, a deposition, or an admission, and thus should not have been considered. 559 F.2d at 1285, n. 5 .
In
Gordon v. Watson,
622 F.2d 120 (5th Cir.1980), a pretrial detainee sued the prosecutor and jailer alleging punitive confinement and denial of telephone privileges. The jailer and prosecutor moved for summary judgment asserting via affidavit that
*181
they had legitimate non-punitive reasons for transfer from one detention facility to another; however, the jailer’s affidavit failed to show a legitimate, non-punitive reason for confining the prisoner in a one-man cell except to the extent that it incorporated an earlier verified response to the motion for summary judgment. The Court found that the trial court impermissibly relied on the incorporated matters in granting summary judgment because such did not affirmatively show that the affiant was competent to testify to the matters or that the facts were based on his personal knowledge. The Court noted that the counter-pleadings filed by the prisoner in response to defendants’ affidavits were not notarized; and, as an unsworn statement it may not be considered in determining the propriety of summary judgment. 622 F.2d at 123 .
See also, Property Management & Investments, Inc. v. Lewis,
752 F.2d 599, 604 (11th Cir.1985) (on motion for summary judgment court may only consider materials that would be admissible or usable at trial);
Meserole v. M/V Fina Belgique,
736 F.2d 147, 149 (5th Cir.1984) (unsworn letter is not admissible on summary judgment motion);
Jacobson v. Maryland Cas. Co.,
336 F.2d 72, 75 (8th Cir.1964) (assertions in motion are meaningless unless supported as provided for in Rule 56(e)).
Any question regarding the propriety of using assertions of counsel made at oral argument or in legal memoranda to establish the existence of any material fact has been laid to rest. Statements of counsel may
not
be used to establish facts.
See, Transurface Carriers, Inc. v. Ford Motor Co.,
738 F.2d 42, 46 (1st Cir.1984) (collecting authority);
Watts v. United States,
703 F.2d 346, 353 (9th Cir.1983) (“Legal memorandum and argument are not evidence and cannot, by themselves, create a factual dispute sufficient to defeat summary judgment where no dispute otherwise exists.”);
British Airways Board v. Boeing Co.,
585 F.2d 946, 952 (9th Cir.1978),
cert. denied,
440 U.S. 981 , 99 S.Ct. 1790 , 60 L.Ed.2d 241 (1979).
See also, Local 314, Nat. P.O. Mail Handlers v. National P.O. Mail Handlers,
572 F.Supp. 133, 140 (E.D.Mo.1983);
Moats v. United States,
564 F.Supp. 1330, 1343-4 (W.D.Mo.1983).
I. UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT OF LIABILITY PURSUANT TO SECTIONS 106(a) AND 107(a) OF CERC-LA AND SECTION 7003 OF RCRA
A. Background
The first application to be considered is the United States’ Motion for Partial Summary Judgment of Liability Pursuant to Sections 106(a) and 107(a) of CERCLA and Section 7003 of RCRA. Relief is requested against the original seven defendants, i.e., Conservation Chemical Company (“CCC”), Norman Hjersted, Conservation Chemical Company of Illinois (“CCCI”), Armco, Inc. (“Armco”), AT & T Technologies, Inc. (“AT & T”), FMC Corporation (“FMC”) and International Business Machines Corporation (“IBM”). In its motion, the plaintiff has included a “Statement of Undisputed Facts,” some of which have in fact been disputed by the defendants.
3
Particular
*182
ized or disputed assertions of fact will be addressed in the substantive discussion of the issues. The following facts which provide background information are basically undisputed. These facts are taken from discovery responses or from the “Remedial Investigation Report” prepared earlier in the litigation by Armco, AT & T, FMC and IBM (sometimes referred to herein as the “original generator defendants”).
From 1960 until the present, defendant CCC has owned and operated an industrial chemicals waste disposal facility located at 8900 Front Street, Kansas City, Missouri (the “site”, the “CCC site” or the “KC site”). The approximately six (6) acre site is located on the Missouri River floodplain, between the East Bottoms Levee and the Missouri River, just upstream of the confluence of the Missouri and Blue Rivers.
CCC purchased the KC site in 1959. By early 1963, CCC had constructed a shop and office building, installed various storage tanks and reaction vessels, and constructed six basins at the site. Basins 1 through 5 were constructed by excavating soils. Basin 6 was constructed by excavating soil and constructing walls.
CCC stored, treated and disposed of various chemical wastes in Basins 1 through 6. In addition, CCC operated one or more incinerators at the site for the destruction of chemical wastes from the early 1960s until approximately 1971. CCC also buried various chemical wastes on the site.
Over 50 million gallons of waste materials were transported to the site during its period of operations. The type of wastes which CCC treated, stored or disposed of at the KC site included:
(1) liquid acidic metal finishing wastes, such as spent steel pickling solutions containing sulfuric acid or hydrochloric acid, spent electroplating solutions, and bright dipping solutions;
(2) liquid alkaline metal finishing wastes, including wastes containing cyanide;
(3) solid cyanide wastes;
(4) laboratory wastes;
(5) non-pourable organic chemicals;
(6) sludge containing arsenic sulfide and elemental phosphorous;
(7) filter cake containing arsenic sulfide; and
(8) solid cyanides.
As a consequence of CCC’s activities, each of the waste disposal basins at the KC site contains at least the following hazardous substances: methylene chloride; tetrachloroethylene; trichloroethylene; toluene; 1,1,1-trichloroethane; phenol; 2,3,7,8-tetra-chlorodibenzo-P-dioxin; arsenic; beryllium; cadmium; chromium; copper; lead; mercury; nickel; selenium; zinc; and cyanides.
4
The surface soil at the CCC site contains at least the following hazardous substances: methylene chloride; tetrachloroe-thylene; tricholoroethylene; bis (2-ethyl-hexyl) phthalate; PCB-1254; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides.
*183
The groundwater beneath the CCC site contains at least the following hazardous substances: benzene; chloroform; ethyl-benzene; methylene chloride; tetrachloroe-thylene; toluene; 1,1,1-trichloroethane; trichloroethylene; vinyl chloride; phenol; arsenic; cadmium; chromium; copper; nickel; selenium; zinc; and cyanides.
The subsurface soil at the CCC site contains at least the following hazardous substances: methylene chloride; tetraehloroe-thylene; toluene; trichloroethylene; phenol; bis (2-ethylhexyl) phthalate; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides.
At least some of these hazardous substances are being released into the environment, which the generator defendants define as areas likely to be directly encountered by humans or other living organisms.
5
The “Remedial Investigation Report” states that hazardous substances are being and may be released from the CCC site in several ways:
Waste materials from the site have the potential for migration via groundwater, surface water or air. Migration to groundwater can occur through leaching or by direct infiltration. These materials can also enter the atmosphere through volatilization or particulate transport while migration to surface water can occur by way of overland flow and flood inundation. Wastes which enter the aquifer beneath the site can be transported by groundwater flow to discharge points along the Blue River and Missouri River. The surface water flow can, in turn, transport these materials to receptors along the Missouri River.
By defendants’ own estimates, more than 22,000 pounds of hazardous substances are being discharged into the Missouri River and Blue River each year. Such discharges include the following hazardous substances: benzene; carbon tetrachloride; chloroform; 1,1-dichloroethane; 1,2-dichlo-roethane; 1,1-dichloroethylene; ethylben-zene; methylene chloride; tetrachloroethy-lene; toluene; 1,2-trans-dichloroethylene; 1,1,1-trichloroethane; 1,1,2-tricholoroe-thane; tricholoroethylene; trichlorofluoro-methane; vinyl chloride; 2,4-dichlorophe-nol; 2,4-dimethylphenol; phenol; 2,4,6-tri-chlorophenol; arsenic; cadmium; chromium; copper; nickel; selenium; thallium; zinc; and cyanides. These substances could continue to be discharged for many years.
Of the substances listed in the preceding paragraphs, at least the following are known or suspected carcinogens for which the recommended exposure level is zero: benzene; carbon tetrachloride; chloroform; 1,2-diehloroethane; 1,1-dichloroethylene; tetrachloroethylene; 1,1,2-trichloroethane; trichloroethylene; polychlorinated biphe-nyls (PCBs); vinyl chloride; trichlorophe-nol; arsenic; and beryllium. There is potential for exposure of humans to these substances. The site is surrounded by Kansas City, Missouri and its suburbs. A farmer cultivates soybeans on the land immediately adjacent to the site on the southeast side. Mobay Chemical Corporation (“Mobay”) operates a manufacturing facility which is located one-quarter mile south of the site. A Kansas City Power & Light Company (“KCP & L”) plant is located approximately one-quarter mile west-northwest of the site. Residential and other industrial areas are as close as 1.3 miles from the site.
Mobay operates several wells on its property that may draw groundwater from beneath the CCC site. The Missouri Water Company draws water for public water supplies from several wells located on the same side of the river as the site about five miles downstream of the site. Those wells
*184
are recharged, at least in part, by water from the river. The City of Lexington, located 40 miles downstream from the CCC site, draws water directly from the Missouri River for public use. In addition, other living organisms, including frogs, toads, turtles, lizards, snakes, birds, mammals and fish, are likely to inhabit the area of the CCC site.
B. Liability Under CERCLA Section 107
1.
The Elements of Liability Under 107(a) of CERCLA
Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a), identifies both those persons who are liable for response costs incurred by the United States under Section 104 of CERCLA, 42 U.S.C. § 9604 , and those persons who may be ordered under Section 106 of CERCLA, 42 U.S.C. § 9606 , to abate any imminent and substantial endangerment to health, welfare or the environment that an actual or threatened release of a hazardous substance may present.
See, United States v. Conservation Chemical Company,
589 F.Supp. 59, 62 (W.D.Mo. 1984). Thus, the elements of Section 107(a) will be considered first.
Certain of the requisite elements of a prima facie case under Section 107(a) relate to the site in general, while others relate to the individual defendants. With respect to the CCC site, the United States must establish the following:
(1) the CCC site is a “facility”;
(2) a “release” or a “threatened release” of a or any “hazardous substance” from the CCC site has occurred; and
(3) the release or threatened release has caused the United States to incur “response costs.”
See, New York v. Shore Realty Corp.,
759 F.2d 1032, 1042 (2d Cir.1985). Proof of “imminent and substantial endangerment” (discussed in the next section) is not required in a Section 107 action.
See, United States v. Hardage,
13 Env’tl L.Rep. 20188 (W.D.Okla. Sept. 29, 1982). To complete the prima facie case against each defendant, the United States must prove that the defendant is one of the following persons:
(1) a person
6
who owns or operates the facility [§ 107(a)(1) ];
(2) a person who owned or operated the facility when a hazardous substance was disposed of at the facility [§ 107(a)(2)];
(3) a person who arranged for disposal or treatment of a hazardous substance which such person owned or possessed, at a facility containing such hazardous substance [§ 107(a)(3)]; or
(4) a person who accepted a hazardous substance for transport to a disposal or treatment facility or to a site which such person selected [§ 107(a)(4)],
If undisputed facts establish each of these elements with respect to a defendant, then the United States would be entitled to a partial summary judgment that such defendant is a responsible party under Section 107(a) of CERCLA.
2.
Application of the Elements of Liability in This Case
a.
The CCC Site is a “Facility”
“Facility” is defined in CERCLA as follows:
“Facility” means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located
*185
42 U.S.C. § 9601 (9). This definition is intentionally expansive:
The definition of “facility” is necessarily a broad one. It explicitly defines facility as, among other things, any site or area where a hazardous substance has been deposited, stored, disposed of, or otherwise come to be located.
126 Cong.Rec. H 11773, H 11789 (Dec. 3, 1980),
reprinted in
1
Legis.Hist.
at 783 (remarks of Representative Florio).
Notably, “facility” is defined in the disjunctive. It means not only “(A) any ... pit, pond, lagoon, impoundment, [or] landfill ...,” but also
“any site or area
where a hazardous waste substance has been deposited
... or placed, or otherwise come to be located.”
CERCLA § 101(9), 42 U.S.C. § 9601 (9) (emphasis added). Simply put, the term “facility” includes every place where hazardous substances come to be located:
[T]he legislative history makes clear Congress’ intent to address the problem of hazardous wastes rather than merely a particular category of disposal sites. Indeed, it appears that Congress sought to deal with every conceivable area where hazardous substances come to be located
New York v. General Electric Company,
592 F.Supp. 291, 296 (N.D.N.Y.1984) (drag-strip to which contaminated oil had been applied is a “facility”). In order to show that an area is a “facility,” the plaintiff need only show that a hazardous substance, as defined by CERCLA, has been placed there or has “otherwise come to be located” there.
See United States v. Me-tate Asbestos Corp.,
584 F.Supp. 1143, 1148 (D.Ariz.1984) (a real estate subdivision having asbestos fibers on the ground is a “facility”).
Unquestionably, the CCC site is a “site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located.” 42 U.S.C. § 9601 (9). For approximately twenty years, the CCC site was operated as a waste disposal facility. During that time, four major types of wastes were disposed of or treated at the site: acidic wastes (including metal finishing wastes and “pickle liquor” from steel finishing operations); alkaline wastes (including wastes containing cyanides); organic wastes (including trichloroethylene and toluene); and miscellaneous wastes (including arsenic). As indicated previously, any number of hazardous substances, within the meaning of CERCLA Section 101(14), 42 U.S.C. § 9601 (14) have “come to be located” at the CCC site. Given the presence of these hazardous substances at the site, the CCC site is a “facility” within the meaning of CERCLA.
b.
There has been a release or threatened release of hazardous substance from the CCC site
CERCLA Section 101(22) defines “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ...” 42 U.S.C. § 9601 (22). This definition has been construed broadly.
See Missouri v. Independent Petrochemical Corp.,
22 E. R.C. 1167 (E.D.Mo. Jan. 8, 1985). A “release” occurs, for example, when asbestos fibers are blown from a site by the wind,
United States v. Metate Asbestos Corp., supra
584 F.Supp. at 1149 , or when hazardous substances leach into soil and groundwater.
See United States v. Wade,
577 F. Supp. 1326, 1334 (E.D.Pa.1983);
United States v. Northeastern Pharmaceutical and Chemical Company,
579 F.Supp. 823 (W.D.Mo.1984) (“NEPACCO”). The release or threatened release “of
a
or
any
hazardous substance” is sufficient to establish liability.
See United States v. South Carolina Recycling and Disposal, Inc.,
14 Env’tl L.Rep. 20272 (D.S.C. Feb. 23, 1984);
United States v. Wade, supra,
577 F.Supp. at 1333 (“the release which results in the incurrence of response costs and liability need only be of ‘a’ hazardous substance and not necessarily one contained in the defendant’s waste.”).
In their response to the plaintiff’s motion, the four generator defendants dis
*186
pute that there has been a “release” into the groundwater. However, the defendants’ Remedial Investigation Report revealed that hazardous substances are “leaking, escaping, and leaching” at least into the soil at the CCC site. Such leaking, leaching and escaping will continue until the source of such hazardous substances is removed or other remedial actions are taken. Thus, there is both a release and a threatened release of a hazardous substance from the CCC site.
c.
The Government’s Response Costs
Although the term “response costs” is not defined in CERCLA, “response” is defined to mean “remove, removal, remedy, and remedial action.” “Remove” or “removal” are defined in Section 101(23), 42 U.S.C. § 9601 (23), and “remedy” or “remedial action” are defined in Section 101(24), 42 U.S.C. § 9601 (24). In holding that the language of CERCLA provides the government with broad cost recovery rights, Judge Clark in the
NEPACCO
case stated that the activities for which the government could recover response costs included the following:
(a) Investigations, monitoring and testing to identify the extent of danger to the public health or welfare or the environment.
(b) Investigtions, monitoring and testing to identify the extent of the release or threatened release of hazardous substances.
(c) Planning and implementation of a response action.
(d) Recovery of the costs associated with the above actions, and to enforce the provisions of CERCLA, including the costs incurred for the staffs of the EPA and the Department of Justice.
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 850 . By affidavit dated April 3,1985, Robert L. Morby, chief of the Superfund Branch, Waste Management Division of the Environmental Protection Agency in Kansas City, Missouri, states that as of February 22, 1985, the United States had incurred response costs in the amount of $2,018,387.89, and that the United States continues to incur response costs. However, in order for the government to be able to collect its response costs under Section 107, it must be established that those costs are “not inconsistent with the National Contingency Plan.” 42 U.S.C. § 9607 (a). Although the burden of proving that the costs incurred were inconsistent with the National Contingency Plan is on the defendants,
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 850 , the original generator defendants have raised a question of disputed fact concerning this issue. Neither CCC, CCCI nor Norman Hjersted, however, have disputed the issue of response costs. Since material facts have been put in issue by the four original generator defendants, the Court is precluded from entering summary judgment against them, although presumably, the Court might enter summary judgment against CCC, CCCI or Norman Hjersted if the final element of liability under Section 107 is established.
d.
The Defendants as “Covered Persons”
(i)
CCC
CCC is a corporation organized under the laws of the State of Missouri. CCC has owned the KC site since 1959, and operated the site as a disposal facility from 1960 until CCC stopped accepting waste in late 1979 or early 1980. During that period, CCC stored, treated and disposed of various chemical wastes in Basins 1 through 6. CCC also operated one or more incinerators at the site to destroy chemical waste. Among the wastes that were disposed of at the site while it was being operated by CCC were: (1) sludges containing arsenic sulfide and elemental phosphorous; (2) filter cake containing arsenic sulfide; and (3) solid cy-anides. All of these substances are “hazardous substances” within the meaning of CERCLA.
As indicated previously, among the “covered persons” who are liable for re
*187
sponse costs under Section 107 are the owner and operator of the facility, Section 107(a)(1), and any person who at the time of disposal of any hazardous substance owned or operated the facility at which such hazardous substance was disposed of, Section 107(a)(2). 42 U.S.C. § 9607 (a)(1)-(2). Clearly, CCC is liable under both subsections (a)(1) and (a)(2) of Section 107 since it is both the current owner of the CCC site and was the owner and operator of the site when hazardous substances were disposed of at the site.
(ii)
Norman B. Hjersted
Norman Hjersted founded CCC in 1960, and has been its president since its inception. He has also owned at least 93% of CCC’s stock since 1960.
Initially, Hjersted was CCC’s sole technical person. “Plant managers” were subsequently hired, but they reported directly to Hjersted. He controlled the company’s fiscal matters and made decisions about the types of projects and business ventures CCC would undertake. He was primarily responsible for environmental controls at CCC and also acted as a chemical engineer. Even when he resided in Gary, Indiana (from approximately 1968 to 1974), Hjerst-ed personally visited the KC site several times a month. After he returned to Kansas City in 1975 he was much more closely involved with the day-to-day operations of the KC site. In short, Hjersted “[is] the boss of CCC operations and ha[s] been all along.”
The recent case of
New York v. Shore Realty Corp., supra,
held the owning stockholder who managed a corporation liable under CERCLA Section 107, after analyzing the meaning of “owner or operator.” The court determined that “owner or operator” is defined to mean “any person owning or operating” an onshore facility, 42 U.S.C. § 9601 (20)(A), and “person” includes individuals as well as corporations, 42 U.S.C. § 9601 (21). 759 F.2d at 1051 .
More important, the definition of “owner or operator” excludes “a person, who, without participating in the management of a ... facility, holds indicia of ownership primarily to protect his security interest in the facility.”
Id.
§ 9601(20)(A). The use of this exception implies that an owning stockholder who manages the corporation, such as Leo Grande, is liable under CERCLA as an “owner or operator.” That conclusion is consistent with that of other courts that have addressed the issue.
See, e.g., United States v. Carolawn Co.,
14 Envtl.L.Rep. (Envtl.L. Inst.) 20,699, 20,700 (D.S.C. June 15, 1984);
NEPACCO,
579 F.Supp. at 847-48 . In any event, Leo Grande is in charge of the operation of the facility in question, and as such is an “operator” within the meaning of CERCLA.
Id.
at 1052. The court held LeoGrande liable for the abatement of the nuisance without piercing the corporate veil. New York courts have held that a corporate officer who controls corporate conduct, and thus is an active individual participant in that conduct, is liable for the torts of the corporation, so it was unnecessary to reach the question of piercing the corporate veil. The court concluded:
As a final note, however, the district court should take into account one additional factor in supervising its injunction, a principle limiting perhaps to some extent, Leo Grande’s liability for the future costs of abatement. The injunctive remedy is an equitable one; that abatement expenses may become prohibitive and disproportionate therefore may be taken into consideration.
Id.
at 1053.
Corporate officers were also held personally liable under CERCLA in
United States v. Northeastern Pharmaceutical and Chemical Company, supra.
Lee, the vice president of NEPACCO, the corporate entity that contracted through corporate representatives for the transport and disposal of hazardous waste, was held personally liable. He was directly responsible for arranging the disposal and transport of the hazardous waste at the site. He had direct knowledge and supervision of the contract.
*188
He assisted in the selection of the hazardous waste site.
Lee argued that corporate officers are normally not personally liable for acts of the corporate entity. He contended that he did not own or possess the hazardous waste since the corporate entity had the ownership rights to the hazardous waste. He also alleged that the hazardous waste substance contained in the barrels dumped at the site was manufactured by another corporate entity.
The court found such arguments of little significance to the imposition of liability. The court reasoned that Lee had actual knowledge of the drums and storage. Lee possessed the barrels within the meaning of Section 107(a)(3) and had direct supervision and knowledge of the disposal of the barrels. Further, under Section 107(a)(3), the person arranging for the disposal is not required to actually own or possess the hazardous waste.
United States v. NEPACCO, supra,
579 F.Supp. at 847 .
Lee was found to be a “person” within the definition in 42 U.S.C. § 9601 (21). An analogous situation was dealt with in
Apex Oil Co. v. United States,
530 F.2d 1291 (8th Cir.1976). There the court construed the statutory language of 33 U.S.C. § 1321 (b)(5) and (6), the liability provisions of the Clean Water Act which imposes the same strict liability standard as CERCLA. The court held
... that a “person in charge” can include both the individual employee and the corporation. Although the issue in
Apex Oil Co.
was whether an owner-operator (the corporation in that case) could be held liable as a “person in charge,”
Id.
at 1292-93 , this Court considers the Eighth Circuit’s analysis significant in defining an employee’s liability under CERCLA: “Section 1321(b)(5) speaks in terms of any person in charge. We note that it would not be inconsistent with the statutory language to hold both the employee and the corporation to its penaliies [sic] for failure to report a spill.”
Id.
at 1293 n. 6.
579 F.Supp. at 848 . The definition of “person” under the Clean Water Act is almost identical to the definition of “person” under CERCLA. The court found that the term “person" arranging for the disposal of hazardous substance should be given a liberal interpretation that may include both the employee and the corporation. Lee, then, acting as an employee, had the responsibility to and did arrange for the disposal of the hazardous waste pursuant to Section 107(a)(3).
Lee can be classified as both an owner and operator of the NEPACCO plant due to his position as vice president and as a major stockholder. 42 U.S.C. § 9601 (20)(A) states that an “owner or operator”
means ... (ii) in the case of an onshore facility, any person owning or operating such facility ... Such term does not include a person, who, without participating in the management of a ... facility, holds indicia of ownership primarily to protect his interest in the ... facility.
579 F.Supp. at 848 . From the language of the statute a person who owns an interest in a facility and is actively participating in its management can be held liable for the disposal of hazardous waste.
The court, in sum, found sufficient evidence to impose liability on Lee:
Lee had the capacity to control the disposal of hazardous waste at the NEPAC-CO plant; the power to direct the negotiations concerning the disposal of wastes at the Denney farm site; and the capacity to prevent and abate the damage caused by the disposal of hazardous wastes of the Denney farm site. Finally, Lee was a major stockholder in NEPAC-CO and actively participated in the management of NEPACCO in his capacity as vice-president.
579 F.Supp. at 849 .
Michaels, founder and president of NEP-ACCO as well as a major stockholder in the corporation, was also found to be strictly liable as an “owner and operator.” The court found that the same policy considera
*189
tions expressed by Congress holding Lee liable would also necessitate the imposition of liability on Michaels.
Personal liability of three corporate officers was found under CERCLA in
United States v. Carolawn Co.,
14 Env’tl L.Rep. 20699 (D.S.C. June 15, 1984). Officers or representatives Tischler, McClure, and Ger-gel of Columbia Organic Chemical Company (“COCC”) purchased the bankrupt Southeastern Pollution Control Company (“SEPCO”). The three officers or representatives incorporated a new company, known as South Carolina Recycling and Disposal, Inc. (“SCRDI”) and served as officers of the new company. Tischler and McClure were personally involved in the operation of the site as a hazardous waste storage site. The three officers eventually sold the site to Carolawn.
The court held the three subject to liability as owners of the site and also held Tischler and McClure liable as operators of the site. To reach the holding, the court examined the definition of “person” and “owner or operator.” The court also found the analysis in
NEPACCO
persuasive and concluded:
Thus, to the extent that an individual has control or authority over the activities of a facility from which hazardous substances are released or participates in the management of such a facility, he may be held liable for response costs incurred at the facility notwithstanding the corporate character of the business.
14 Env’tl L.Rep. at 20700. In addition, the defendants did not substantiate that the government could not pierce the corporate veil of SCRDI or COCC to reach them personally. The court referred to the well-established principles set forth in
Dewitt Truck Brothers v. Flemming Fruit Co.,
540 F.2d 681 (4th Cir.1976) that must be considered before a determination can be made to pierce the corporate veil.
Examining the definitions in CERCLA of “person” and “own or possess,” the Court in
United States v. Mottolo,
14 Env’tl L.Rep. 20497 (D.N.H. Mar. 27, 1984) ruled that Sutera, the president and principal shareholder of the corporation disposing of the hazardous wastes, was liable. The court found that Sutera was responsible for the conduct and management of the affairs and activities of the corporation and participated in arranging for the disposal of the wastes. Sutera argued that he operated the corporation to limit his personal liability and that he is not a “person” who arranged for the transport or disposal of hazardous wastes within the meaning of CERCLA. He maintained that any relevant activities occurred while he acted in his capacity as president and shareholder, but that he did not engage in relevant activities as an individual. Sutera also argued that he did not “own or possess” hazardous substances which is required for liability under CERCLA.
The court noted that corporate officers may be individually liable for the torts of a corporation where they participate in the tortious conduct. Determining that Sutera was responsible for the entire operation of the corporation and that he did just about everything in the corporation, the court found him liable. As in the cases discussed above, the court found the corporation to be a “person” within the meaning of CERCLA and that the person who arranges for disposal or transport for the disposal of hazardous substances need not own or possess the waste.
United States v. Mottolo, supra,
at 20499.
Finally, the court addressed the issue of piercing the corporate veil. There was no allegation of fraud or misuse of the corporate form, and the court stated that to warrant piercing the corporate veil, it must be alleged with sufficient particularity that the corporation had no will or existence of its own separate from that of Sutera. Failure to state such a claim obviated the need to consider piercing the corporate veil.
The former owner of the company which transported hazardous substances to the site was not held personally liable in
United States v. Wade, supra.
Citing
In Re Arthur Treacher’s Franchisee Litigation,
92 F.R.D. 398 (E.D.Pa.1981) and
Amabile
*190
v. Auto Kleen Car Wash,
249 Pa.Super. 240 , 376 A.2d 247 (1977), the court said:
A corporate officer may be held liable if he personally participates in the wrongful, injury-producing act.
577 F.Supp. at 1341 . In
Wade ,
the former owner, Barnhouse, personally delivered drums to the site. However, the court said that the testimony was inadequate to establish the individual liability of Barnhouse since there was no evidence presented concerning the number or frequency of drums delivered, or their content. In addition, the court found that negotiations of Barnhouse to dispose of wastes were insufficient to establish personal liability. Finally, the court found that allegations that Barn-house directed or participated in the disposal of wastes at the site were inadequate to establish personal liability. In this case, then, the court recognizes personal liability of a former owner, but does not find personal liability because of inadequate evidence.
Thus, corporate officials who actively participate in the management of a disposal facility can be held personally liable under Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a). Hjersted could, therefore, be held personally liable under both subsection (a)(1) and (a)(2) of Section 107 of CERCLA as a current owner and as a person who owned and operated the facility at the time hazardous substances were disposed of if it were established that his participation was of the nature and degree which would warrant imposition of personal liability. However, the Special Master is reluctant to impose such liability based upon the factual record before him. While Hjersted may not have disputed the factual assertions made by the plaintiff, Hjersted has vigorously opposed the imposition of personal liability. Under these circumstances, and giving due consideration to the caution which a court must exercise in ruling on summary judgment motions, the Special Master recommends that the Court not enter summary judgment against Hjersted at this time.
(iii)
CCCI
CCCI is a corporation organized under the laws of the State of Illinois. By contract, agreement or otherwise, CCCI arranged with CCC for the disposal of wastes containing cyanide possessed by CCCI at the KC site. By contract, agreement or otherwise, CCCI also arranged with a transporter for transport for disposal or treatment of cyanide-bearing wastes owned or possessed by CCCI at the KC site. In addition, CCCI accepted cyanide-bearing waste for transport to CCC-KC for treatment and disposal with CCCI selecting the KC site as the disposal site. At least some of the cyanide-bearing wastes actually were disposed of at the KC site.
CCCI is liable as a waste generator under Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607 (a)(3). In
United States v. Wade, supra,
the Court stated the test for a prima facie case against a generator as follows:
Stripping away the excess language, the statute appears to impose liability on a generator who has (1) disposed of its hazardous substances (2) at a facility which now contains hazardous substances of the sort disposed of by the generator (3) if there is a release of that or some other type of hazardous substance (4) which causes the incurrence of response costs. Thus, the release which results in the incurrence of response costs and liability need only be of “a” hazardous substance and not necessarily one contained in the defendant’s waste. The only required nexus between the defendant and the site is that the defendant had dumped his waste there and that the hazardous substances found in the defendant’s waste are also found at the site.
577 F.Supp. at 1333 .
See also, United States v. South Carolina Recycling and Disposal, Inc., supra. But see, United States v. Ottati & Goss, Inc.,
No. C 80-225-1 (D.N.H. Dec. 8, 1983);
State ex rel. Brown v. Georgeoff,
562 F.Supp. 1300, 1306 (N.D.Ohio 1983). More recently, the United States Court of Appeals for the
*191
Second Circuit concluded that a landowner’s argument for a causation requirement was at odds with the structure of the statute: “[interpreting section 9607(a)(1) as including a causation requirement makes superfluous the affirmative defenses provided in section 9607(b), each of which carves out from liability an exception based on causation.”
New York v. Shore Realty Corp., supra,
at 1044. The Special Master concludes that the minimal causation standard established by
Wade
is appropriate.
7
Therefore, CCCI’s protestations that its cyanides have not been proven to be releasing from the site are to no avail.
In addition, CCCI is also liable as a transporter of hazardous substances under Section 107(a)(4) of CERCLA, 42 U.S.C. § 9607 (a)(4). As indicated, CCCI has admitted that it accepted cyanide-containing wastes for transport for the KC site, and further that it selected the KC site as the disposal site for such wastes.
(iv)
The four original generators
Even had the four original generators not challenged the plaintiff’s response costs, summary judgment could still not be entered against them. The four companies have adroitly disputed material facts concerning the shipment of their wastes to the CCC site. For example, while admitting that invoices and shipping records reflect that their wastes were intended to be disposed of at the CCC site, they rely on Norman Hjersted’s deposition testimony that some or all of such wastes may not have been disposed of at the CCC site and thereby put those facts in issue. Therefore, the Court should not rule that the four generators are “covered persons” within the meaning of Section 107(a)(3) for purposes of summary judgment.
3.
The Standard and Scope of Liability Under Section 107
The Court has previously ruled that' Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a), imposes strict liability upon responsible parties.
See United States v. Conservation Chemical Company, supra,
589 F.Supp. at 62 . In response to the plaintiff’s motion, neither CCC nor CCCI asserted that any of the defenses to liability under Section 107(b) of CERCLA, 42 U.S.C. § 9607 (b), were applicable. In its previous opinion, this Court also held that liability under Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a), is joint and several where the harm arising from a release or threatened release of a hazardous substance is indivisible.
See United States v. Conservation Chemical Company, supra,
589 F.Supp. at 63 . Thus, if the endangerment resulting from the conditions at the CCC site is indivisible, CCC and CCCI may be held jointly and severally liable (together with any other parties found liable at that time) for the United States’ response costs under Section 107, 42 U.S.C. § 9607 . Notwithstanding the plaintiff’s suggestions to the contrary, the Special Master submits that the question of the indivisibility of the harm cannot be determined on summary judgment.
C. Liability Under CERCLA Section 106
1.
Imminent and Substantial Endangerment: The Statutory and Deci-sional Framework
As indicated previously, this Court has already ruled that Section 107(a) of CERC-LA, 42 U.S.C. § 9607 (a), identifies those persons who will not only be liable for response costs incurred under Section 104 of CERCLA, 42 U.S.C. § 9604 , but also those persons who may be ordered under Section 106 of CERCLA, 42 U.S.C. § 9606 , to abate any imminent and substantial endangerment to health, welfare or the environment that an actual or threatened release of a hazardous substance may present.
See, United States v. Conservation Chemical Company, supra,
589 F.Supp. at 62 . Therefore, the discussion in the previous section as to the elements of liability, with the exception of the discus
*192
sion of the response costs, are equally applicable to the government’s claim under Section 106, 42 U.S.C. § 9606 .
Section 106 authorizes the United States to seek a mandatory injunction against responsible parties “when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility ...” 42 U.S.C. § 9606 . The term “imminent and substantial endangerment” is not defined in CERCLA. As a result, there is no abbreviated guidance as to the specifics of the circumstances that Congress intended would warrant injunctive relief. To ascertain Congress’ intent requires examination of CERCLA’s statutory framework, its legislative history, and other probative evidence. “Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived ...”
United States v. Fisher,
6 U.S. (2 Cranch) 358, 386 , 2 L.Ed. 304 (1805), quoted in
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 834 .
The starting point for the Court’s analysis must be the language of the statute itself. While the words employed by Congress must be given their ordinary meaning,
Perrin v. United States,
444 U.S. 37, 42 , 100 S.Ct. 311, 314 , 62 L.Ed.2d 199 (1979), they must also be interpreted “in light of the purposes Congress sought to serve.”
Chapman v. Houston Welfare Rights Organization,
441 U.S. 600, 608 , 99 S.Ct. 1905, 1911 , 60 L.Ed.2d 508 (1979). Furthermore, “statutes which are enacted for the protection and preservation of public health” are to be given “an extremely liberal construction for the accomplishment and maximization of their beneficent objectives.” 3 Sutherland,
Statutes and Statutory Construction,
§ 71.02 at 313.
Examining the language of Section 106, it must be noted that the United States does not have to prove that an “imminent and substantial endangerment” actually exists. The statute clearly authorizes the United States to obtain relief when “there
may
be an imminent and substantial endangerment.” 42 U.S.C. § 9606 (a) (emphasis added). Secondly, the United States does not have to show that
people
may be endangered. Section 106(a) authorizes relief where there may be an endangerment to “the public health
or
welfare
or
the environment.” 42 U.S.C. § 9606 (a) (emphasis added). Use of the disjunctive “or” mandates the conclusion that a possible endangerment to the public welfare alone, or a possible endangerment to the environment alone, will warrant relief. The term “public welfare” is exceptionally broad, and encompasses “health and safety, recreational, aesthetic, environmental and economic interests.”
City of El Paso v. Reynolds,
597 F.Supp. 694, 700 (D.N.M.1984). The term “environment,” as used in CERCLA, includes “(A) the navigable waters, ... and (B) any other surface water, groundwater, drinking water supply, land surface or subsurface strata, or ambiant air within the United States or under the jurisdiction of the United States ...” 42 U.S.C. § 9601 (8).
The expansive scope of the terms “public welfare” and “environment” mandates the conclusion that Congress intended injunc-tive relief to issue whenever any aspect of the nation’s interest in a clean environment may be endangered imminently and substantially by a release. As Senator Stafford, one of CERCLA’s sponsors, stated, “[T]he purpose of this bill ... is to protect the public health and welfare in its broadest sense.” 126 Cong.Rec. S 16427 (Dec. 12, 1980).
Finally, the term “imminent and substantial endangerment” itself demonstrates the expansive scope of Section 106. An “endangerment” is not actual harm, but a threatened or potential harm.
Ethyl Corp. v. Environmental Protection Agency,
541 F.2d 1 (D.C.Cir.1976),
(en banc), cert. denied,
426 U.S. 941 , 96 S.Ct. 2663 , 49 L.Ed.2d 394 (1976);
Reserve Mining Company v. Environmental Protection Agency,
514 F.2d 492 , 528 (8th Cir.1975)
{en
banc) (construing the word “endangering”
*193
as used in the emergency powers provision of the Clean Water Act prior to 1970). Because endangerment entails only a threat of harm, the endangerment provisions “have enhanced the courts’ traditional equitable powers by authorizing the issuance of injunctions when there is but a
risk of harm,
a more lenient standard that traditional requirement of threatened irreparable harm.”
United States v. Price,
688 F.2d 204, 211 (3rd Cir.1982) (emphasis added). It is submitted that the standard is in fact even more lenient than the
Price
opinion suggests, because CERCLA Section 106 authorizes injunctive relief when there
may
be a risk of harm, not just when there
is
a risk of harm. Thus, if “the public health or welfare or the environment” may he exposed to a risk of harm, an endangerment may exist.
Similarly, the United States need not quantify the risk of harm in order to establish an endangerment. Both the courts and Congress have recognized that the evaluation of a risk of harm involves medical and scientific conclusions that “clearly lie ‘on the frontiers of scientific knowledge’ ”, such that “proof with certainty is impossible.”
Reserve Mining Company v. Environmental Protection Agency, supra,
514 F.2d at 519-520. The
Reserve Mining
case involved a question of whether the discharge of a substance which, “under an acceptable but unproved medical theory may be considered carcinogenic,” into Lake Superior was “ ‘endangering the health or welfare of persons’ ” and thus subject to abatement under the Clean Water Act.
Id.
at 529. In determining that injunctive relief was appropriate, the Court reasoned as follows:
In assessing probabilities in this case, it cannot be said that the probability of harm is more likely than not. Moreover, the level of probability does not readily convert into a prediction of consequences. On this record it cannot be forecast that the rates of cancer will increase from drinking Lake Superior water or breathing Silver Bay air. The best that can be said is that the existence of this asbestos contaminant in air and water gives rise to a reasonable medical concern for the public health. The public’s exposure to asbestos fibers in air and water creates some health risk. Such a contaminant should be removed.
Id.
at 520.
Contrary to the Defendants’ contentions, an endangerment need not be an emergency in order for it to be “imminent and substantial.”
See, United States v. Waste Industries,
734 F.2d 159, 165 (4th Cir.1984). An endangerment need not be immediate to be “imminent,” and thus warrant relief. In rejecting the argument that the endangerment provision analogous to CERCLA Section 106 found in Section 7003 of RCRA, 42 U.S.C. § 6973 , was confined to true emergency situations, the Court in
United States v. Reilly Tar and Chemical Corp.,
546 F.Supp. 1100 (D.Minn.1982), quoted from a House committee report accompanying the Safe Water Drinking Act discussing the meaning of the phrase “imminent and substantial endangerment” as follows:
... administrative and judicial and implementation of this authority must occur early enough to prevent the potential hazard from materializing. This means that “imminence” must be considered in light of the time it may take to prepare administrative orders or moving papers to commence and complete litigation and to permit issuance, notification, implementation, and enforcement of administrative or court orders to protect the public health.
Furthermore, while the risk of harm must be “imminent” for the administrator to act, the harm itself need not be. Thus, for example, the administrator may invoke this section when there is an imminent likelihood of the introduction into drinking water of contaminents that may cause health damage after a period of latency.
546 F.Supp. at 1109-1110 .
See also United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 846 n. 28. Thus, an endanger-
*194
merit is “imminent” if factors giving rise to it are present, even though the harm may not be realized for years.
Congress has accepted these interpretations of the words “endangerment” and “imminent.” In amending Section 7003 of RCRA, 42 U.S.C. § 6973 , to clarify its application to past generators of hazardous wastes, Congress declared:
[D]ue to the nature of the hazards presented by disposal sites, Section 7003 is “intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic wastes.”
United States v. Price,
688 F.2d 204, 213-214 (3rd Cir.1982). An endangerment means a risk of a harm, not necessarily actual harm, and proof that the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste
may
present an imminent and substantial endangerment is grounds for an action seeking equitable injunctive relief.
United States v. Price, supra,
and
United States v. Vertac Chemical Corp.,
489 F.Supp. 870, 885 (E.D.Ark., W.D.1980). The
primary intent of the provision is to protect human health and the environment;
hence, the courts should consider both the nature of the endangerment which may be presented and its likelihood, recognizing that risk may be “assessed from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections, from imperfect data, or from probative preliminary data not yet certifiable as ‘fact’.”
United States v. Vertac Chemical Corp., supra,
at 885, citing
Ethyl Corporation v. Environmental Protection Agency,
No. 73-2205 (D.C.Cir. Jan. 28, 1975) (dissenting op. at 11, 31-33),
reversed en banc
at 541 F.2d 1 (D.C.Cir.1976),
cert. denied
426 U.S. 941 [ 96 S.Ct. 2663 , 49 L.Ed.2d 394 ] (1976). An endangerment is “imminent” and actionable when it is shown that it presents a threat to human health or the environment, even if it may not eventuate or be fully manifest for a period of many years — as may be the case with drinking water contamination, cancer, and many other effects.
United States v. Price, supra,
and
United States v. Reilly Tar & Chemical Corp.,
[ 546 F.Supp. 1100, 1109-10 ] Civ. No. 4-80-469 (D.Minn. Aug. 23, 1982) at 10-13.
S.Rep. No. 284, 98th Cong., 1st Sess., at 59 (Oct. 28, 1984).
Congress’ emphasis on the protection of health and the environment, and especially its approval of the use of nondefinitive data in risk assessment, means that if an error is to be made in applying the endangerment standard, the error must be made in favor of protecting public health, welfare and the environment. Thus, just as the word “imminent” does not require proof that harm will occur tomorrow, and the word “endangerment” does not require quantitative proof of actual harm, the word “substantial” does not require quantification of the endangerment (e.g., proof that a certain number of persons will be exposed, that “excess deaths” will occur, or that a water supply will be contaminated to a specific degree). Instead, the decisional precedent demonstrates that an endangerment is substantial if there is reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or a threatened release of a hazardous substance if remedial action is not taken, keeping in mind that protection of the public health, welfare and the environment is of primary importance. A number of factors (e.g., the quantities of hazardous substances involved, the nature and degree of their hazards, or the potential for human or environmental exposure) may be considered in determining whether there is reasonable cause for concern, but in any given case, one or two factors may be so predominant as to be determinative of the issue.
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
is one of two cases decided to date under Section 106(a) of CERCLA that have applied the imminent and substantial endangerment criteria. In
NEPACCO,
85 bar-
*195
reís of waste materials containing as much as 319 ppm of dioxin, 40 ppm of toluene, and 63 ppm of trichlorophenol, had been buried in an area underlain by limestone bedrock. The bedrock was marked by sinks, underground streams and caverns, such that the waste ultimately could reach drinking water supplies, even though it was impossible to predict the rates and direction of groundwater movement. In discussing the endangerment at the site, Judge Clark noted as follows:
Because of the region’s soil conditions, there was a substantial likelihood of the hazardous waste in the trench at the Denny Farm site entering the environment and going into the groundwater system; whereupon, the contaminants
may
have come into contact with members of the public who
may
have been adversely affected by their exposure to these wastes.
Pursuant to the consent decree ... Syn-tex removed the deteriorated drums and other contaminated materials from the trench and placed them in a temporary storage, a concrete bunker, on the Denny Farm site...
The wastes no longer present an imminent and substantial endangerment.
579 F.Supp. at 833 (emphasis added). Thus, without considering the concentration of the hazardous substances at the point of exposure, the number of persons or other living organisms who might be exposed, or the extent to which excess deaths or illnesses would occur, the court found that the conditions of the site presented an imminent and substantial endangerment.
8
United States v. Seymour Recycling Corp.,
618 F.Supp. 1 (S.D.Ind.1984), is apparently the only other action under CERCLA Section 106(a) wherein a court has applied the “imminent and substantial” endangerment criteria. In
Seymour,
a shallow aquifer passing beneath the disposal site contained benzene, phthalates, trichloroethylene and other organic compounds. Preliminary studies indicated that the groundwater in the aquifer flowed in the direction of a subdivision which used well water. Although the studies did not show that any immediate danger existed to people using the wells in the subdivision, the court found that because the groundwater flowed in the direction of the subdivision and the contaminants could be expected eventually to reach those residences, that it presented an imminent and substantial endangerment.
Because hazardous substances are, by definition, capable of causing serious harm, a substantial endangerment may exist whenever the circumstances of a release or threatened release of a hazardous substance are such that the environment or members of the public may become exposed to such substances and are therefore put at risk. For very hazardous substances, such as those which are toxic at low concentrations or known or suspected carcinogens, a substantial endangerment will arise when small amounts are released or threatened to be released.
See United States v. Northeastern Pharmaceutical and Chemical Company, supra.
As was observed in
United States v. Wade, supra,
wherein the court rejected the defendant’s argument that CERCLA imposed liability only for releases containing reportable quantities of hazardous substances:
[Gjiven the standard established by § 102 for designating additional substances as hazardous, Congress may well have intended to vest a great deal of discretion in the Executive branch in its prosecutorial decisions. A substance may be designated as hazardous if, upon release into the environment, it “may present substantial danger to the public health or welfare or the environment.” (footnote omitted.) 42 U.S.C. § 9602 (a). Similarly, the interim standards for reportable quantities under CERCLA — one pound for all substances except those designated pursuant to § 311(b)(2)(A) of
*196
FWPCA — suggests that Congress intended a result almost as drastic as the one the generator defendants posit (i.e., that liability could be imposed for release of a copper penny, since copper is a hazardous substance). If Congress intended CERCLA liability only for those whose discharges contained reportable quantities of hazardous substances, and if the reportable quantities are determined by reference to § 102, defendant could be held liable for the disposal, not of one penny, as the defendants fear, but of a pound of pennies.
577 F.Supp. at 1340 .
2.
Imminent and Substantial Endangerment for Purposes of the Motion
The language of CERCLA, the decisional precedent, the definition of “hazardous substance” and the expressions of Congressional intent discussed above all lead to the conclusion that an endangerment is “substantial” whenever members of the public or the environment may be exposed to a risk of harm by virtue of a release or threatened release of hazardous substances. While a number of factors (e.g., the amounts of hazardous substances, the nature and degree of their hazards, the routes of releases and potential exposure routes) may be considered in determining whether there is a substantial endangerment in any given case, one or two factors may be so predominant as to be determinative of the issue. Here, there is ample evidence to demonstrate that given the types and amounts of hazardous substances being released from the site and the potential for exposure, that as a matter of law an imminent and substantial endangerment exists.
Numerous hazardous substances are present and releasing from the CCC site. Humans or wildlife who venture onto the site
9
may come into direct contact with the hazardous substances. Humans and other living organisms off the site may also be exposed to hazardous substances that migrate from the site via groundwater, surface water or air. In addition, the groundwater, air and surface waters that these substances may reach are all part of the “environment” that CERCLA is intended to protect.
See,
CERCLA Section
101(8),
42 U.S.C. § 9601 (8).
Although the endangerment assessment portion of the generator defendants’ Remedial Investigation Report only addresses “the magnitude and probability of actual or potential harm to
humans
” (R.I. 9-1) (emphasis added), and assumes that there will never be changes in the use and character of the site and the property in the vicinity of the site, or in the use of water from the Missouri River downstream of the site, and that the security fence and warning notices will remain in place and in good condition forever
10
, that report nevertheless demonstrates sufficient cause for concern for defendants to recommend that remedial action be taken at the site. The report recognizes, for example, that persons working on the site, trespassers and Mobay and KCP & L employees face some risk from exposure to airborne contaminants from the site.
11
Therefore, the report recommends that means to reduce access to the site and to “mitigate against” possible dispersion of windblown constituents be installed and maintained.
12
Similarly, the report recognizes that “uncontrolled prolonged contact or ingestion of ... materials in the soil or stabilized waste matrix may present a risk to humans”
13
, and classifies
*197
this as a “moderate” risk that requires remediation.
14
Defendants also concede that remedial action is necessary to “mitigate migration of soils and/or waste materials under heavy precipitation or flood conditions.”
15
Although the defendants state that “[w]hile it is readily admitted from the results of the remedial investigation that contaminants do exist in the Conservation Chemical site and that such contaminants are leaching slowing from that site ...”, they argue vigorously that “[a]t no place [in the remedial investigation report] have defendants agreed that any of the conditions and risks associated therewith ... constitute an imminent and substantial endangerment.” Suggestions of Original Generator-Defendants in Opposition to Plaintiff’s Motion for Partial Summary Judgment of Liability Pursuant to Sections 106(a) and 107(a) of CERCLA and Section 7003 of RCRA, at pp. 7-10. The defendants appear to be playing a game of semantics. Assuming a given set of facts, the determination of whether or not those facts constitute an “imminent and substantial endangerment” is a question of law. The Special Master concludes — even if the defendants do not — that under the limited facts assumed for purposes of this motion
16
, there is “an imminent and substantial endangerment to the public health or welfare or the environment” because of the release or threat of a release of hazardous substances from the site.
D. Liability Under RCRA Section 7003
1.
The Case Law and the 1984 Amendments
The case law concerning liability issues under RCRA Section 7003, 42 U.S.C. § 6973 , addresses a number of issues. As indicated previously, interpretation of the phrase “imminent and substantial endangerment” has been litigated.
See, United States v. Reilly Tar and Chemical Corp., supra,
546 F.Supp. at 1109-1110 . The question has been raised as to whether RCRA applies at all to inactive disposal sites.
See, United States v. Waste Industries, Inc., supra,
734 F.2d at 165 ;
United States v. Price,
688 F.2d 204 , 214 (3rd Cir.1982);
Mola Development Corp. v. United States,
22 E.R.C. 1443 (C.D.Calif. Feb. 11, 1985);
United States v. Solvents Recovery Service of New England,
496 F.Supp. 1127, 1140-1141 (D.Conn.1980). The issue creating the most dissension in the ranks of the courts has been whether RCRA Section 7003 could be applied to past, off-site, non-negligent generators.
See, Jones v. Inmont Corp.,
584 F.Supp. 1425, 1437 (S.D.Ohio 1984);
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 837 ;
United States v. Wade,
546 F.Supp. 785, 792 (E.D.Pa.1982);
United States v. Pnce,
523 F.Supp. 1055, 1073 (D.N.J.1981). Of more than passing interest to the courts has been the extent to which CERCLA was enacted to cure perceived inadequacies of RCRA.
See, United States v. Shell Oil Company,
605 F.Supp. 1064, 1070-1071 (D.Colo.1985);
Bulk Distribution Centers, Inc. v. Monsanto Company,
589 F.Supp. 1437, 1441 (S.D.Fla.1984);
United States v. Northeastern Pharmaceutical and Chemical Company, supra,
579 F.Supp. at 839 .
However, on November 8, 1984, President Reagan signed the Hazardous and Solid Waste Amendments of 1984, H.R. 2867, 98th Cong., 2d Sess., 130 Cong.Rec. H 11,103-11,125, which,
inter alia,
amended Section 7003 of RCRA, 42 U.S.C. § 6973 . As amended, that section now provides, in pertinent part, as follows:
*198
Notwithstanding any other provision of this Act, upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste may present an imminent and substantial endangerment to health or the environment, the administrator may bring suit on behalf of the United States in the appropriate district court against any person (including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility) who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation or disposal, to order such person to take such other action as may be necessary, or both
The Special Master is unaware of any cases construing RCRA Section 7003 as amended. The plaintiff contends that the 1984 amendment merely clarifies what had been the Congressional intent all along, i.e., that RCRA applies to inactive sites, that Section 7003 applies to past operators, generators and transporters, that the standard of liability is one of strict liability, and that the scope of liability is joint and several where the endangerment is indivisible. The four original generator defendants acknowledge the 1984 amendment but are silent as to its implications, with the exception that they argue, based upon the conference report concerning the amendments, that the amendments reaffirm the fact that causation is an element of the cause of action under Section 7003. Neither CCC, Norman Hjersted nor CCCI address the effects of the 1984 amendment at all.
The conference report alluded to above does, in fact, confirm that the amendment was designed to clarify Congress’ intent and resolve some of the uncertainties that had arisen in the course of litigation. The Joint Explanatory Statement of the Committee of Conference states, in pertinent part:
Section 7003 focuses on the abatement of conditions threatening health and the environment and not particularly human activity. Therefore, it has always reached those persons who have contributed in the past or are presently contributing to the endangerment, including but not limited to generators, regardless of fault or negligence. The amendment, by adding the words “have contributed,” is merely intended to clarify the existing authority. Thus, for example, non-negligent generators whose wastes are no longer being deposited or dumped at a particular site may be ordered to abate the hazard to health or the environment posed by the leaking of the wastes they once generated and which have been deposited on the site. The amendment reflects the long-standing view that generators and other persons involved in the handling, storage, treatment, transportation or disposal of hazardous wastes must share the responsibility for the abatement of the hazards arising from their activities. The section was intended and is intended to abate conditions resulting from past activities. Hence, the district court decisions in
United, States v. Wade,
546 F.Supp. 785 (E.D.Pa. 1982) ,
United States v. Waste Industries,
No. 80-4-Civ.-7 (E.D.N.C. Jan. 3, 1983) and
United States v. Northeastern Pharmaceutical and Chemical Company, Inc., et al.,
579 F.Supp. 823 (W.D.Mo. 1984) , which restricted the application of Section 7003, are inconsistent with the authority conferred by the section as initially enacted and with these clarifying amendments.
98th Cong., 2d Sess., 130 Cong.Rec. H 11137. Thus, it is clear that RCRA Section 7003 applies to inactive sites and that past operators, generators and transporters may be held to a standard of strict liability for their activities.
17
The report does not
*199
address, however, the claim of the plaintiff herein that the scope of liability under Section 7003 is joint and several where the endangerment is indivisible, or the claim of the original generator defendants that proof of causation is required to establish liability. The Special Master agrees with both claims.
The Court has broad authority under Section 7003 to grant the equitable relief necessary to eliminate the endangerment.
See, United States v. Price, supra,
688 F.2d at 213-214 . By its terms, Section 7003 provides that
any
person “contributing” to an imminent and substantial endangerment may be ordered to take whatever action is necessary to abate the endangerment. Congress, by providing the courts with this broad power to order the relief necessary to abate the hazard, has authorized the imposition of joint and several liability to ensure complete relief. The propriety of joint and several liability is confirmed by the relevant legislative history of Section 7003, which demonstrates Congress’ clear intent to give broad authority to the courts to grant all relief necessary to ensure complete protection of public health and the environment.
See,
S.Rep. No. 284, 98th Cong. 1st Sess., at 59 (Oct. 28, 1984) (Section 7003 “is intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic wastes”, citing
United States v. Price, supra,
688 F.2d at 213-214 ).
Moreover, it is quite clear that Section 7003 is essentially a codification of the common law of public nuisance.
See,
S.Rep. No. 172, 96th Cong., 2nd Sess., at 5 (1980), U.S.Code Cong. & Admin.News 1980, 5019, 5023;
Jones v. Inmont Corp., supra,
584 F.Supp. at 1436. Since Congress intended Section 7003 to be both a codification and expansion of the common law of public nuisance, Congress must also have intended for joint and several liability to be applied where the injury is indivisible. As this Court has recognized, joint and several liability is the evolving, modern rule applied in environmental cases where the injury is indivisible.
United States v. Conservation Chemical Company, supra,
589 F.Supp. at 63. It is proper to assume that Congress was aware of these common law decisions and intended for joint and several liability to be applied in like cases.
See, Cannon v. University of Chicago,
441 U.S. 677, 696-697 , 99 S.Ct. 1946, 1957-1958 , 60 L.Ed.2d 560 (1979).
The common law of nuisance also provides for causation as an element of the cause of action. The original defendant generators rightfully point to language in the 1984 conference report which supports their argument that some causation requirement should be applied under Section 7003: “Thus, for example, non-negligent generators whose wastes are no longer being deposited or dumped at a particular site may be ordered to abate the hazard to health or the environment
posed by the leaking of the wastes they once generated and wkich have been deposited on the site.”
98th Cong., 2d Sess., 130 Cong.Rec. H 11137 (Oct. 3, 1984) (emphasis added). Thus, to maintain a cause of action under Section 7003, the government must show that a particular generator’s waste (or at least waste of the same type where the wastes have been commingled) “has contributed or ... is contributing” to a situation which may present an imminent and substantial endangerment to health or the environment.
2.
Application for Purposes of This Motion
To be entitled to injunctive relief under Section 7003 of RCRA,
42
U.S.C. § 6973 , the government must establish three elements: (1) that the conditions at the CCC site “may present an imminent and substantial endangerment”; (2) that the endangerment stems from “the handling, storage, treatment, transportation or disposal of any solid or hazardous waste”; and (3) that the defendant “has contributed
*200
or is contributing to such handling, storage, treatment, transportation or disposal.” 42 U.S.C. § 6973 . As indicated previously, the Special Master has concluded that sufficient evidence has been presented by undisputed facts to establish that a “imminent and substantial endangerment” exists at the CCC site. Therefore, the first element is satisfied.
“Disposal” is defined in RCRA:
The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or any hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.
42 U.S.C. § 6903 (3). Because the definition includes the word “leaking”, “disposal” occurs not only when a solid waste or a hazardous waste is first deposited, dumped, spilled or placed onto or into the ground or water, but also when such wastes migrate from their initial location. As was observed in
United States v. Waste Industries, Inc., supra:
The inclusion of “leaking” as one of the diverse definitional components of “disposal” demonstrates that Congress intended “disposal” to have a range of meanings, including conduct, a physical state, and an occurrence. Discharging, dumping, and injection (conduct), hazardous waste reposing (a physical state) and movement of the waste after it has been placed in a state of repose (an occurrence) are all emcompassed in the broad definition of disposal. “Leaking” ordinarily occurs when landfills are not constructed soundly or when drums and tank trucks filled with waste materials corrode, rust, or rot. Thus, “leaking” is an occurrence included in the meaning of “disposal.”
734 F.2d at 164 . See also,
United States v. Price, supra,
523 F.Supp. at 1073 .
The defendants’ Remedial Investigation Report demonstrates that a number of substances have migrated into and are migrating the soil and groundwater beneath the CCC site. Included among the substances which are “leaking” from the site are arsenic, cadmium, chromium, nickel, zinc, cy-anides and trichloroethylene. Each of these substances is a “hazardous waste” for purposes of Section 7003.
RCRA defines “hazardous waste” as follows:
The term “hazardous waste” means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—
(A) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903 (5).
Arsenic, cadmium, chromium, nickel, zinc, cyanides and trichloroethylene, all of which were sent to and are found at the site, are “hazardous wastes” within the meaning of Section 7003. Each of these substances is listed in Appendix VIII to 40 C.F.R. Part 261. The substances listed in that appendix “have been shown in scientific studies to have toxic, carcinogenic, mu-tagenic or teratogenic effects on other life forms,” and as such to be “capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of ...” 40 C.F.R. § 261.11 . Thus, such substances satisfy the definition of “hazardous wastes” under 42 U.S.C. § 6903 (5)(B), and the second element of liability under RCRA Section 7003 can be established.
The third element of liability cannot be established as to any of the defendants other than CCC for purposes of summary judgment. As the current owner of the KC site, and as the owner and operator of the site when the materials were dis
*201
posed of, CCC is clearly liable for any endangerment that exists. Even assuming that personal liability might potentially be imposed against Norman Hjersted as a corporate officer/shareholder under RCRA Section 7003, such liability should not be found at this stage of the proceedings for the reasons discussed previously. Liability may not be imposed on the four original generator defendants at this time for the reason discussed previously, i.e., that they have disputed the allegations that their wastes were disposed of at the CCC site, and for the additional reason that there would be insufficient evidence of causation under the factual record presented for this motion. Although it has admitted to disposing of cyanide wastes at the KC site, CCCI may not be held liable at this stage for the reason that it is disputed whether or not CCCI’s wastes are contributing to the endangerment.
The government contends, that in addition to the injunctive relief specifically authorized by Section 7003, that that section also provides authority for the United States to recover the costs it has incurred at the CCC site. The defendants, on the other hand, contend that recovery of response costs is not an appropriate form of relief under Section 7003.
Section 7003 gives the courts authority to issue prohibitory injunctions and to order “such other action as may be necessary ...” 42 U.S.C. § 6973 . The statute thereby invokes on behalf of the United States “the full equity powers of the federal courts in the effort to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes.”
United States v. Price, supra,
688 F.2d at 214 . The court in
Price
upheld the denial of a preliminary injunction seeking to require defendants to fund a diagnostic study. The court of appeals found that the district court had authority under Section 7003 to order defendants to fund the study, but sustained the denial of the preliminary injunction as within the district court’s discretion, since a more practical solution was to have EPA undertake the study without delay, with “[rjeimbursement ... thereafter be[ing] directed against those parties ultimately found to be liable.”
Id.
Significantly, the Senate report on the 1984 amendments to RCRA quoted with approval the statement found in
Price
( 688 F.2d at 213-214 ) that Section 7003 is “intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate risks posed by toxic waste.” S.Rep. No. 284, 98th Cong., 1st Sess., at 59.
By seeking relief in the form of recovery of the government’s costs incurred after the enactment of RCRA in 1976, the United States seeks the equitable remedy of restitution. In
Wyandotte Transportation Co. v. United States,
389 U.S. 191 , 88 S.Ct. 379 , 19 L.Ed.2d 407 (1967), restitution was granted to the United States for the costs of removing from a waterway a sunken vessel containing chlorine gas. In
Reserve Mining Co. v. Lord,
529 F.2d 181, 184 (8th Cir.1976)
(en banc),
the court held that reimbursement for expenditures by the United States in removing pollutants discharged into Lake Superior in violation of the Federal Water Pollution Control Act was within the jurisdiction of the district court. The district court thereupon found the polluter liable for interim filtration expenses incurred by the United States, relying in part upon
Wyandotte. See, United States v. Reserve Mining Co., 408
F.Supp. 1212, 1214-1216 (D.Minn.1976).
The Special Master concludes that the recovery of costs incurred by the United States pursuant to its activities under RCRA may be an appropriate form of relief in an action brought pursuant to RCRA Section 7003. Unlike the recovery of response costs pursuant to Section 107 of CERCLA, however, such cost recovery devolves purely from the court’s exercise of equitable discretion and must necessarily await a full and detailed analysis of the equities of the case. Therefore, to enter such relief at the summary judgment stage would be inappropriate.
E. Summary
In summary, the Special Master recommends that the Court grant in part and
*202
deny in part the United States’ motion for partial summary judgment on liability issues. Specifically, the Special Master recommends that the Court enter an order finding that the United States will be entitled to relief as follows:
(1) for recovery of response costs under CERCLA Section 107 from CCC and CCCI;
(2) for injunctive relief to abate the endangerment under CERCLA Section 106 from CCC and CCCI; and
(3) for injunctive relief to abate the endangerment under Section 7003 of RCRA from CCC.
It must be emphasized that the summary judgment recommended to be entered against CCC and CCCI is partial only. At trial, the government must establish its response costs and must establish the extent of the endangerment. Summary judgment should not be entered against the four original generator defendants for the following reasons: regarding the CERCLA Section 107 claim, they have disputed facts concerning the government’s response costs and their shipment of wastes to the CCC site; regarding the CERCLA Section 106 claim, they have disputed facts concerning their shipment of wastes to the CCC site; and regarding the RCRA Section 7003 claim, they have disputed facts concerning their shipment of wastes to the CCC site and causation. Summary judgment should not be entered against Norman Hjersted on any of the claims for the reason that the nature and degree of his personal participation has not been established sufficiently at this stage. Summary judgment should not be entered against CCI on the RCRA claim because it has disputed causation.
II. THE UNITED STATES’ MOTIONS REGARDING DEFENSES
Plaintiff United States of America has filed two motions for partial summary judgment against the original defendants pertaining to defenses asserted by the defendants. Motion One relates to certain equitable affirmative defenses and Motion Two relates to certain legal defenses. A Memorandum of Points and Authorities in Opposition to the United States’ Motion for Partial Summary Judgment has been filed to each of the motions by the original generator defendants. In addition, CCCI and Norman B. Hjersted filed a consolidated Memorandum in Opposition to Plaintiff United States’ Motion for Partial Summary Judgment As To Certain Equitable and Legal Affirmative Defenses (United States’ Motions One and Two).
The following arguments are made in these documents:
UNITED STATES
1. The only defenses available are those enumerated in CERCLA Section 107(b).
2. Lack of negligence or use of due care is not cognizable under CERCLA or RCRA.
3. Equitable defenses cannot be used to defeat liability.
4. Causation defenses as set forth by defendants are insufficient as a matter of law.
5. Defenses relating to the government’s right to recover its response costs under CERCLA are insufficient as a matter of law.
6. The defense that injunctive relief is inappropriate because the U.S. has an adequate remedy at law is insufficient as a matter of law.
7. There is no statute of limitations to bar this action.
8. Constitutional defenses are without merit.
9. Defendant FMC’s wastes are not exempt from the operation of CERC-LA.
GENERATOR DEFENDANTS
1. All equitable defenses are proper under CERCLA Sections 106 and 107.
2. Affirmative equitable defenses are relevant to a decision of the government’s other claims.
*203
3. U.S. allegations of sovereign immunity and public interest are insufficient to defeat equitable defenses.
4. Proof of causation is essential in a CERCLA action.
5. Defenses are sufficient as a matter of law regarding the government’s right to recover response costs.
6. Injunctive relief is inappropriate because the U.S. has an adequate remedy at law.
7. This action is barred by a statute of limitations.
8. Defendants’ constitutional defenses are meritorious.
9. FMC’s mining wastes are exempt under CERCLA.
CCCI AND HJERSTED
1. The due care defense is an appropriate defense and is properly asserted.
2. Laches and estoppel are appropriate defenses and are properly pleaded.
3. There is a denial of due process in the application of CERCLA.
The points listed above will be discussed in sections below concerning the enumerated statutory defenses, equitable defenses, and legal defenses.
A. Statutory Defenses Enumerated in CERCLA Section 107(b)
Section 107 of CERCLA addresses liability, and Section 107(b) specifically enumerates the defenses to liability:
(b) There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act of omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
42 U.S.C. § 9607 (b). The listing in Section 107(b) is narrow. Releases and damages are protected only if solely caused by acts of God or war, or acts or omissions of certain third parties. The defendant must establish that he or she exercised due care with respect to the substances and with respect to the selection of the third parties causing the release if the intervening cause was a third party.
The courts have not generally been called upon to interpret the defenses provided by Section 107(b) when examining the liability section of CERCLA. Decisions which address the enumerated defenses usually refer to and rely upon interpretation of the language of the statute and the legislative history.
If the statutory language is clear and unambiguous, then the language is controlling.
See, Touche Ross v. Redington,
442 U.S. 560, 568 , 99 S.Ct. 2479, 2485 , 61 L.Ed.2d 82 (1979);
Ernst & Ernst v. Hochfelder,
425 U.S. 185, 197 , 96 S.Ct. 1375, 1382 , 47 L.Ed.2d 668 (1976). “Without a clear congressional command otherwise, we will not construe a statute in any way that makes some of its provisions surplusage.”
New York v. Shore Realty Corp.,
759 F.2d 1032, 1044 (2d Cir.1985), citing
United States v. Mehruranesh,
689 F.2d 822, 829 (9th Cir.1982) and
National Insulation Transportation Committee v. ICC,
683 F.2d 533, 537 (D.C.Cir.1982).
*204
The legislative history of a statute is, of course, always important in determining the legislative intent for its implementation. In the instance of the “Superfund” legislation, a hastily assembled bill and a fragmented legislative history add to the usual difficulty of discerning the full meaning of the law.
This Court has held that strict liability is the standard to apply in implementing the liability section of CERCLA.
See, United States v. Conservation Chemical Co., supra,
589 F.Supp. at 62. Although the term “strict” was deleted at the last minute, it still appears that Congress intended to impose a strict liability standard subject only to the affirmative defenses listed in Section 107(b). 42 U.S.C. § 9601 (32) provides that “liability” under CERCLA “... shall be construed to be the standard of liability” under Section 311 of the Clear Water Act, 33 U.S.C. § 1321 , which courts have held to be strict liability,
see, e.g. Steuart Transportation Co. v. Allied Towing Corp.,
596 F.2d 609, 613 (4th Cir.1979), and which Congress understood to impose such liability.
See,
S.Rep. No. 848, 96th Cong., 2d Sess. 34 (1980),
reprinted in
1
CERCLA Legislative History
at 308, 341.
Courts interpreting Section 311 have carefully examined the Clean Water Act’s legislative history.
See, U.S. v. LeBeouf Bros. Towing Co.,
621 F.2d 787 (5th Cir. 1980),
cert, denied,
452 U.S. 906 , 101 S.Ct. 3031 , 69 L.Ed.2d 406 (1981);
Steuart Transportation Co. v. U.S.,
596 F.2d 609 (4th Cir.1979);
Burgess v. M/V Tamano,
564 F.2d 964 (1st Cir.1977),
cert. denied,
435 U.S. 941 , 98 S.Ct. 1520 , 55 L.Ed.2d 537 (1978). In each case, the courts have found that Congress intended to impose strict liability. These findings came in the context of determining the liability of parties intimately involved in the challenged pollution activity, and thus, congressional intent was relatively clear. CERCLA, on the other hand, imposes liability upon various parties whose nexus to the damage or injuries may be less clear.
As the standard of liability under CERC-LA is strict liability, the defenses listed in Section 9607(b) are affirmative defenses available to preclude imposition of strict liability. The provision of a strict liability standard in a statute does not mean that legal or equitable defenses cannot be asserted.
The placement of Section 9607 within the Act was noted in
U.S. v. Price, supra:
The heading used for § 107, “Liability,” denotes an intention to have this section define liability for the entire act. This conclusion is reinforced by the fact that § 107 does not contain any qualifying language. Instead, it appears that Congress desired to use quite broad and unrestrained terminology. In this manner, § 107 sets forth standards of liability and associated defenses.
577 F.Supp. at 1113 . The Special Master concludes that the defenses enumerated in Section 107 go solely to the question of strict liability.
B. Lack of Negligence or Use of Due Care
As has been previously discussed, the standard of liability under CERCLA Sections 106 and 107 and RCRA Section 7003 is strict liability. Therefore, defenses based upon the claims that defendants were not negligent or that they exercised due care cannot be used to avoid liability. Under appropriate circumstances, however, such “defenses” may be relevant to issues of apportionment of liability among the defendants at some later date.
C. Equitable Defenses
Equitable defenses are proper under CERCLA in determining liability, the nature of the remedy and the amount of damage.
Section 106(a) specifically states that a court may “grant such relief as the public interest and the equities of the case may require.” 42 U.S.C. § 9606 (a). On its face, Section 106 incorporates traditional equitable defenses.
United States v. Reilly Tar & Chemical Corporation,
Civil No.
*205
4-80-469 (D.Minn. June 14, 1984) states that:
... since the court may consider the equities of the case in fashioning relief under § 106 of CERCLA should the United States prevail, resolution of this motion [United States’ motion to strike lach-es defense] at this time could not narrow the necessary factual inquiries at trial.
Slip op. at 5. In construing the same section of CERCLA,
United States v. A & F Materials Company, Inc.,
578 F.Supp. 1249 (S.D.Ill.1984) the court said that it “... must be guided by the equities of the case.” 578 F.Supp. at 367 . Similarly, in
United States v. Stringfellow,
No. 83-2501 (C.D.Cal. April 5, 1984) the court stated in regard to CERCLA: “In conferring jurisdiction on the District Courts ... Congress intended that the Courts’ equitable powers be used.” Slip op. at 11.
As discussed, Section 101(32) provides that liability under CERCLA shall follow the liability standard of Section 311 of the Clean Water Act. In a recent case,
Wein-berger v. Romero-Barcelo,
456 U.S. 305 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982), the Supreme Court held that the traditional equitable defenses to injunctive relief must be considered in construing Section 311. That section, like Section 106, provides for injunctive relief subject to a limited number of defenses. The Supreme Court stressed that an injunction is an extraordinary remedy, noting that if a statute did not expressly abrogate equitable principles, they were available:
Unless a statute in so many words, or by necessary and unescapable reference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.
456 U.S. at 313 , 102 S.Ct. at 1804 . As equitable defenses are appropriate under Section 106 and the same standard of liability and associated defenses apply to Section 107, equitable defenses should be available under Section 107 also.
The Court has recently recognized that the plaintiff’s Section 107 claims seek the equitable remedy of restitution when it approved the Special Master’s Recommendation Regarding General Dynamics Corporation’s Demand For a Jury Trial.
See,
Order, May 14, 1985. That recommendation provided, in pertinent part, as follows:
*206
Special Master’s Recommendation Regarding General Dynamics Corporation’s Demand For a Jury Trial at 7-8.
*205
There is no right to a jury trial in CERCLA actions for cost reimbursement under Section 107 of CERCLA because the action seeks the equitable remedy of restitution.
See, United States v. Northeastern Pharmaceutical and Chemical Company,
19 E.R.C. 2186 (W.D.Mo. Sept. 30, 1983);
United States v. Motto-lo,
Civil No. 83-547-D, Civil No. 84-90-D, slip op. (D.N.H. March 15, 1985);
United States v. Georgeoff,
No. 83-1656-A, slip op. (N.D.Ohio Aug. 2, 1984);
United States v. Tyson,
No. 84-2663, slip op. (E.D.Pa. Nov. 28, 1984);
United States v. Union Gas Company,
No. C83-2454, slip op. (E.D.Pa. Aug. 2, 1984);
United States v. Wade,
No. 79-1426, slip op. (E.D.Pa. Feb. 21, 1984);
United States v. Argent Corporation,
No. 83-523-HB, slip op. (D.N.M. Dec. 20, 1983);
United States v. Reilly Tar and Chemical Company,
13 Env’tl.Rep. 20897 (D.Minn. June 23, 1983).
What both plaintiff and third-party plaintiffs are seeking under Section 107 is the return of monies spent on behalf of others’ legal obligation to clean up hazardous waste. As in
Mottolo,
the parties in this action “seek restitution, that is, to restore the
status quo
by receiving their rightful reimbursement.”
United States v. Mottolo,
Civil No. 83-547-D, Civil No. 84-90-D (D.N.H. March 15, 1983), slip op. at 36. Restitution is an equitable remedy,
see Porter v. Warner Holding Co.,
328 U.S. 395, 400-402 [ 66 S.Ct. 1086, 1090-1091 , 90 L.Ed. 1332 ] (1946), and there is no jury trial where a purely equitable remedy is sought.
See, Ross v. Bern-hard,
396 U.S. 531, 533 [ 90 S.Ct. 733, 735 , 24 L.Ed.2d 729 ] (1970);
Dairy Queen v. Wood,
369 U.S. 469,471-473 [ 82 S.Ct. 894, 896-897 , 8 L.Ed.2d 44 ] (1962). Accordingly, there is no constitutional right to a jury trial on the Section 107 and Section 7003 claims included'in this case.
*206
In
Mardan Corp. v. C.G.C. Music, Ltd.,
600 F.Supp. 1049 (D.Ariz.1984), the court noted that Section 107(b) did not prohibit
inter alia,
defenses such as waiver or laches. The general rule is well-established that laches is unavailable as a defense against the United States in enforcing a public right.
See, United States v. California,
332 U.S. 19 , 67 S.Ct. 1658 , 91 L.Ed. 1889 (1947);
United States v. Summerlin,
310 U.S. 414 , 60 S.Ct. 1019 , 84 L.Ed. 1283 (1940);
Utah Power and Light Co. v. United States,
243 U.S. 389 , 37 S.Ct. 387 , 61 L.Ed. 791 (1917). However, a determination of whether the doctrine of laches should bar a claim requires consideration of all the circumstances of a particular case.
See, Citizens & Landowners Against the Miles City/New Underwood Powerline v. Secretary, United States Dept. of Energy,
683 F.2d 1171 (8th Cir. 1982). In
United States v. Reilly Tar & Chemical Corp.,
No. 4-80-469 (D.Minn. June 14, 1984), the court used its discretion to defer ruling on the laches defenses until the record was fully developed. The court stated that “[a] determination of whether the doctrine of laches should bar a claim requires consideration of all the circumstances of a particular case.” Slip op. at 5.
But see, United States v. Mottolo,
605 F.Supp. 898 (D.N.H.1985).
The unclean hands doctrine may properly be asserted against the United States as an equitable consideration, but, given the language and intent of CERCLA, the Special Master doubts if that doctrine could ever bar the government’s claims merely because, for example, federal agencies generated waste to the site (thus making the United States a responsible party). In
Mardan Corp. v. C.G.C. Music Ltd., supra,
the court rejected claims that the enumerated defenses in section 107(b) were exclusive and that “unclean hands” was barred as a defense to a private cause of action under Section 107. The court reasoned that the public policy of assuring that responsible parties bear the costs of hazardous waste clean-up was not defeated by application of the clean hands doctrine. [Parenthetically, it should be noted that the Special Master does not concur with the
Mardan
court's interpretation of
City of Philadelphia v. Stepan Chemical Co.,
544 F.Supp. 1135 (E.D.Pa.1982), or its conclusion that a responsible party is absolutely barred from recovering response costs under Section 107 under the unclean hands doctrine.
See, Mardan Corp. v. C.G.C. Music, Ltd., supra,
600 F.Supp. at 1057-1058 .]
Equitable'defenses of waiver and estop-pel have not been reviewed by the courts in CERCLA cases. Waiver is referred to in the
Mardan
case. There, Mardan argued that contractual defenses were not allowed because subsection (a) of Section 107 states that liability is subject only to the enumerated defenses in subsection (b), which is an exclusive list. The court rejected Mardan’s argument, stating that under such an interpretation:
... defendants would not be able to raise such defenses as statute of limitations,
waiver,
laches, etc. .For the foregoing reasons, the defenses listed in subsection (b) cannot be considered as exclusive.
600 F.Supp. at 1056, n. 9 (emphasis added). Estoppel would be an appropriate affirmative equitable defense under this same reasoning.
D. Causation Under CERCLA
The question of the necessity for proof of causation under CERCLA has been discussed previously in this report.
E. Right to Recover Response Costs
Defendants have raised four defenses relating to the government’s right to recover its response costs under CERCLA. Generally, defendants claim that the United States failed to comply with Section 104 statutory prerequisites to CERCLA recovery. The United States seeks summary judgment with regard to these defenses on the grounds that it is not required to meet Section 104 statutory requirements. The
*207
United States argues that Section 104 serves as a guardian of Superfund resources, and, as such, restrictions in Section 104 are unrelated to Section 107 actions.
United States v. Wade, supra,
supports the contentions of the United States and states that Section 104 places restrictions on the use of the funds within Superfund to prevent:
unprovident or disproportionate use of a limited fund to clean up only a few of the many sites for which no solvent, responsible parties can be found. - Section 107, on the other hand, is intended to impose liability on the responsible parties who created and/or dumped the hazardous wastes ... Thus, the fact that government expenditures at [the] site are not authorized by § 104 affects only the availability of superfund money, and not ... defendants’ liability.
577 F.Supp. at 1336 .
Defendants’ first defense is that the action cannot be brought under CERCLA since the CCC site is not listed on the National Priority List (the “NPL”).
18
Section 107(a) provides for CERCLA liability for “all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan.” 42 U.S.C. § 9607 (a). In an amendment to Section 105, the National Contingency Plan (the “NCP”) was revised to include the NPL, which would prioritize the government’s response efforts. Defendants claim that the United States seeks to compel the recovery of costs associated with remedial actions, which, according to defendants, can only be directed to sites listed on the NPL.
The holding in
New York v. General Electric Company,
592 F.Supp. 291 (N.D. N.Y.1984) directly refutes the argument of defendants. Finding that the liability provisions of Section 107 were independent of the NPL, the argument that remedial actions can only be undertaken at sites listed on the NPL was rejected. General Electric argued that under Section 107(a)(4)(A), States can recover only costs of remedial or removal action which are not inconsistent with the NCP. General Electric claimed that remedial costs may not be recovered because the dragstrip where the wastes were disposed was not among the EPA’s priority list of hazardous sites. The court found General Electric’s contentions unpersuasive and stated:
The fundamental flaw in its position stems from General Electric’s belief that section 107 “must be read in tandem with section 104, which sets standards for what costs are recoverable and the conditions under which such costs may be recovered.” ... The plaintiffs have demonstrated,

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1797851. Public record. Not legal advice.