# Appendix — Northeastern Pharmaceutical & Chemical Co. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 848

## Text

; Su US,
e7-63° Amo
yu Of Bet

No. | JOSEPH F. SPANIOL, JR.
abi.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

NORTHEASTERN PHARMACEUTICAL AND CHEMICAL
COMPANY, INC., ef a/.,

Petitioner,
VS.

UNITED STATES OF AMERICA,
Respondent.

APPENDIX TO PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT

TED L. PERRYMAN*

JOHN L. WALKER

ROBERTS, PERRYMAN & BOMKAMP, P.C.
1015 Locust Street, Suite 700

St. Louis, Missouri 63101

(314) 421-1850

Attorneys for Petitioners
* Counsel of Record

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

Appendix A - Opinion of Court of Appeals ........... A-1l

Appendix B - Judgment of Court of Appeals.......... A-48
Appendix C - Order of Court of Appeals denying peti-

PIL ook pu cue cvewvssonses A-49

Appendix D - Memorandum Opinion of District Court - A-50
Appendix E - Order for final Judgment .............. A-109

Appendix F - Order of District Court denying motion to

alter or amend judgment.............. A-112
Appendix G - Notice of Appeal ..................... A-114
Appendix H - Notice of Cross-Appeal ............... A-II15

Appendix I - Constitutional and statutory provisions
EE cs SCEN ar Oded aba Skea Nea A-116

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 84-1837

Lnited States of America,
Appellee,

¥.

Northeastern Pharmaceutical & Chemical Co., Inc.,
a Dissolved Delaware Corporation, Edwin Michaels
and John W. Lee,

Appellants.

Ronald Mills and Syntex Agribusiness, Inc.

No. 84-1853

United States of America,
Appellant,
v.
Northeastern Pharmaceutical & Chemica! Co., Inc.,

a Dissolved Delaware Corporation, Edwin Michaels
and John W. Lee,

Appellees,
Ronald Mills and Syntex Agribusiness, Inc.

Appeal and Cross-appeal from
the United States District Court
for the Western District of Missouri

—A-2—.

Submitted: March 25, 1985
Filed: December 31, 1986

Before McMILLIAN, JOHN R. GIBSON and BOWMAN,
Circuit Judges.

McMILLIAN, Circuit Judge.

Northeastern Pharmaceutical & Chemica! Co. (NEPACCO),
Edwin Michaels and John W. Lee appeal from a final judgment
entered in the District Court' for the Western District of
Missouri finding them and Ronald Mills jointly and severally
liable for response costs incurred by the government after
December 11, 1980, and all future response costs relative to the
cleanup of the Denney farm site that are not inconsistent with
the national contingency plan (NCP) pursuant to §§ 104, 107 of
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), 42 U.S.C.n§§ 9604, 9607
(appeal No. 84-1837). For reversal, appellants argue the district
court erred in (1) applying CERCLA retroactively, (2) finding
Michaels and Lee individually liable, (3) failing to dismiss
NEPACCO as a party defendant, (4) awarding response costs
absent affirmative proof that the response costs were consistent
with the NCP, (5) refusing to reduce the award of response costs
by the amount of a prior settlement, and (6) denying appellants
a jury trial.

The United States cross-appeals from that part of the district
court judgment denying recovery of response costs incurred
before December 11, 1980, and finding appellants and Mills
were not liable for response costs pursuant to § 7003(a) of the

' The Honorable Russell G. Clark, United States District Judge for
the Western District of Missouri.

pay wen

Resource Conservation and Recovery Act of 1976 (RCRA) (also
known as the Solid Waste Disposal Act), as amended, 42
U.S.C.A. § 6973(a) (West Supp. 1986) (appeal No. 84-1853).
For reversal the government argues the district court erred in (1)
finding the government could not recover response costs incur-
red before the effective date of CERCLA, December 11, 1980,
and (2) finding appellants and Mills were not liable for response
costs under RCRA § 7003(a), 42 U.S.C.A. § 6973(a) (West
Supp. 1986).

For the reasons discussed below, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
opinion.

I. FACTS

The following statement of facts is taken in large part from
the district court’s excellent memorandum opinion, United
States v. Northeastern Pharmaceutical & Chemical Co., 579 F.
Supp. 823 (W.D. Mo. 1984) (VEPACCO). NEPACCO was in-
corporated in 1966 under the laws of De'aware; its principal of-
fice was located in Stamford, Connecticut. Although NEPAC-
CO’s corporate charter was forfeited in 1976 for failure to
maintain an agent for service of process, NEPACCO did not
file a certificate of voluntary dissolution with the secretary of
state of Delaware. In 1974 its corporate assets were liquidated,
and the proceeds were used to pay corporate debts and then
distributed to the shareholders. Michaels formed NEPACCO,
was a major shareholder, and was its president. Lee was
NEPACCO’s vice-president, the supervisor of its manufactur-
ing plant located in Verona, Missouri, and also a shareholder.
Mills was employed as shift supervisor at NEPACCO’s Verona
plant.

From April 1970 to January 1972 NEPACCO manufactured
the disinfectant hexachlorophene at its Verona plant. NEPAC-
CO leased the plant from Hoffman-Taff, Inc.; Syntex
Agribusiness, Inc. (Syntex), is the successor to Hoffman-Taff.

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Michaels and Lee knew that NEPACCO’s manufacturing pro-
cess produced various hazardous and toxic byproducts, in-
cluding 2,4,5-trichlorophenol (TCP), 2,3,7,8-tetrachloro-
dibenzo-p-dioxin (TCDD or dioxin), and toluene. The waste
byproducts were pumped into a holding tank which was
periodically emptied by waste haulers. Occasionally, however,
excess waster byproducts were sealed in 55-gallon drums and
then stored at the plant.

In July 1971 Mills approached NEPACCO plant manager Bill
Ray with a proposal to dispose of the waste-filled 55-gallon
drums on a farm owned by James Denney located about seven
miles south of Verona. Ray visited the Denney farm and
discussed the proposal with Lee; Lee approved the use of Mills’
services and the Denney farm as a disposal site. In mid-July
1971 Mills and Gerald Lechner dumped approximately 85 of the
55-gallon drums into a large trench on the Denney farm (Den-
ney farm site) that had been excavated by Leon Vaughn.
Vaughn then fiiled in the trench. Only NEPACCO drums were
disposed of at the Denney farm site.

In October 1979 the Environmental Protection Agency (EPA)
received an anonymous tip that hazardous wastes had been
disposed of at the Denney farm. Subsequent EPA investigation
confirmed that hazardous wastes had in fact been disposed of at
the Denney farm and the site was not geologically suitable for
the disposal of hazardous wastes. Between January and April
1980 the EPA prepared a plan for the cleanup of the Denney
farm site and constructed an access road and a security fence.
During April 1980 the EPA conducted an on-site investigation,
exposed and sampled 13 of the 55-gallon drums, which were
found to be badly deteriorated, and tock water aiid soil
samples. The samples were found to contain ‘‘alarmingly’’ high
concentrations of dioxin, TCP and toluene.

In July 1980 the EPA installed a temporary cap over the
trench to prevent the entry and run-off of surface water and to
minimize contamination of the surrounding soil and ground-

ee

water. The EPA also contracted with Ecology & Environment,
Inc., for the preparation of a feasibility study for the cleanup of
the Denney farm site. Additional on-site testing was conducted.
In August 1980 the government filed its initial complaint against
NEPACCO, the generator of the hazardous substances;
Michaels and Lee, the corporate officers responsible for arrang-
ing for the disposal of the hazardous substances; Mills, the
transporter of the hazardous substances; and Syntex, the owner
and lessor of the Verona plant, seeking injunctive relief and
reimbursement of response costs pursuant to RCRA § 700, 42
U.S.C. § 6973 (count I). In September 1983 the feasibility study
was completed.

In the meantime the EPA had been negotiating with Syntex
about Syntex’s liability for cleanup of the Denney farm site. In
September 1980 the government and Syntex entered into a set-
tlement and consent decree. Pursuant to the terms of the settle-
ment, Syntex would pay $100,000 of the government’s response
costs and handle the removal, storage and permanent disposal
of the hazardous substances from the Denney farm site. The
EPA approved Syntex’s proposed cleanup plan, and in June
1981 Syntex began excavation of the trench. In November 1981
the site was closed. The 55-gallon drums are now stored in a
specially constructed concrete bunker om the Denney farm. The
drums as stored do not present an immineni and substantial ¢ -
dangerment to health or the environment; however, no plan fur
permanent disposal has been developed, and the site will con-
tinue to require testing and monitoring in the future.

In August 1982 the government filed an amended complaint
adding counts for relief pursuant to CERCLA §§ 104, 106, 107,
42 U.S.C. §§ 9604, 9606, 9607 (counts II and III). CERCLA
was enacted afier the filing of the initial complaint. In
September 1982 the district court granted partial summary judg-
ment in favor of the government, holding NEPACCO had the
capacity to be sued under Delaware law. In September 1983 the
district court denied the defense demand for a jury trial, holding

— > wo

the government’s request for recovery of its response costs was
comparable to restitution and thus an equitable remedy. The
trial was conducted during October 1983. The district court fil-
ed its memorandum opinion in January 1984.

Il. DISTRICT COURT DECISION

The district court found that dioxin, hexachlorophene, TCP,
TCB (1,2,3,5-tetrachlorobenzene, also found at the Denney
farm site), and toluene have high levels of toxicity at low-dose
levels and are thus ‘‘hazardous substances’’ within the meaning
of RCRA § 1004(5), 42 U.S.C. § 6903(5), and CERCLA §
101(14), 42 U.S.C. § 9601(14). 579 F. Supp. at 832, 845; see
also United States v. Vertac Chemical Corp., 489 F. Supp. 870,
874-79 (E.D. Ark. 1980) (dioxin). The district court also found
there was a substantial likelihcod that the environment and
human beings would be exposed to the hazardous substances
that had been disposed of at the Denney farm site. 579 F. Supp.
at 846 & n.28 (discussing meaning of ‘‘imminent and substantial
endangerment’’ standard). A state geologist testified the Den-
ney farm site is located in an area in which substances rapidly
move through the soil and into the groundwater and, although
no dioxin had been found in the water in nearby wells, dioxin
had been found as far as 30 inches beneath the soil in the trench.
Id. at 832-33.

A. RCRA Findings

The district court held that RCRA § 7003(a), 42 U.S.C. §
6973(a), requires a finding of negligence in order to hold past
off-site generators and transporters liable for response costs, id.
at 836, and thus RCRA did not apply to past non-negligent off-
site generators and transporters of hazardous substances. /d. at
834-37; accord United States v. A & F Materials Co., 578 F.
Supp. 1249, 1258 (S.D. Ill. 1984); United States v. Waste In-
dustries, Inc., 556 F. Supp. 1301, 1308 (E.D.N.C. 1982), rev’d,
734 F.2d 159 (4th Cir. 1984); United States v. Wade, 546 F.
Supp. 785, 790 (E.D. pa. 1982), appeal dismissed, 713 F.2d 49

yo

(3d Cir. 1983); United States v. Midwest Solvent Recovery, Inc.,
484 F. Supp. 138, 144 (N.D. Ind. 1980).

B. CERCLA Findings

CERCLA § 104, 42 U.S.C. § 9604, authorizes the EPA to
take direct ‘‘response’’ actions, which can include either short-
term ‘‘removal’’ actions or long-term ‘‘remedial’’ actions or
both, pursuant to the NCP, with funds from the ‘‘Superfund,’”?
and to seek recovery of response costs from responsible parties
pursuant to CERCLA § 107, 42 U.S.C. § 9607, in order to
replenish the Superfund. The EPA can also use CERCLA §
106, 42 U.S.C. §9606, to seek injunctions to compel responsible
parties to clean up hazardous waste sites that constitute an ‘‘im-
minent and substantial endangerment”’ to health and the en-
vironment. In the present case, count II sought injunctive relief
pursuant to CERCLA § 106, 42 U.S.C. § 9606, and count III
sought recovery of the government’s past and future response
costs pursuant to CERCLA §§ 104, 107, 42 U.S.C. §§ 9604,
9607.

The district court applied CERCLA retroactively, 579 F.
Supp. at 839, but held the government could not recover
response costs incurred before the effective date of CERCLA,
December 11, 1980. Jd. at 841. The district court also held
CERCLA imposes a standard of strict liability, id. at 843-44,
and that responsible parties can be held jointly and severally
liable, id. at 844-45.

The district court also found NEPACCO liable as an “‘owner
Or operator’ pursuant to CERCLA § 107(a)(1), 42 U.S.C. §
9607(a)(1). Jd. at 847. With respect to the individual defen-

? CERCLA establishes two funds: CERCLA § 232, 42 U.S.C. §
9641, establishes the Post-Closure Liability Trust Fund, which is
funded through taxes on hazardous substances dispose of at
qualified disposal facilities, and the ‘‘Superfund,’’ or Haz rdous
Substances Response Trust, which is funded largely by special taxes
on the petroleum and chemical industries and also by general ap-
propriations.

—

dants, the district court found Mills liable as a ‘‘person who...
accepted any hazardous substances for transport to disposal. . .
sites selected by such person,’’ pursuant to CERCLA §
107(a)(4), 42 U.S.C. § 9607(a)(4). Id. Mills was not represented
by counsel in the district court and has not appealed. The
district court also found Lee liable as an ‘‘owner or operator’’
pursuant to CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), and
as a ‘‘person who by contract, agreement, or otherwise. . . ar-
ranged with a transporter for transport for disposal . . . of
hazardous substances,’’ pursuant to CERCLA § 107(a)(3), 42
U.S.C. § 9607(a)(3). Id. at 847-49. The district court found
Michaels liable as a person who arranged for the transport and
disposal of hazardous substances pursuant to CERCLA §
107(a)(3), 42 U.S.C. § 9607(a)(3). Jd. at 849 n.31. The liability
of NEPACCO, Lee, Michaels, and Mills was joint and several.
Id. at 849-50.

The district court further found the government’s right to
recovery of response costs was very broad and included litiga-
tion costs, attorney’s fees, future response costs, and prejudg-
ment interest, and that the defendants in an action by the
government for recovery of response costs had the burden of
proving that the government’s response costs were inconsistent
with the NCP. /d. at 850-52. NEPACCO, Michaels and Lee
have appealed. Mills has not appealed. The government filed a
cross-appeal. Syntex filed an amicus curiae brief, generally in
support of appellants’ retroactivity arguments.’

> We do not consider in this appeal and cross-appeal the arguments
raised by Syntex about causation, strict liability, joint and several
liability, and separation of powers. Syntex, as amicus, cannot raise
issues not raised by the parties. See, e.g., preservation Coalition, Inc.
v. Pierce, 667 F.2d 851, 861-62 (9th Cir. 1982); Bing v. Roadway Ex-
press, Inc., 485 F.2d 441, 452 (Sth Cir. 1973). Most cases have impos-
ed strict liability and joint and several liability under RCRA and
CERCLA. See, e.g., United States v. Ottati & Goss, Inc., 630 F.
Supp. 1361, 1395-96, 1401 (D.N.H. 1985); United States v. Conserva-
tion Chemical Co., 619 F. Supp. 162, 191, 198-99, 204 (W.D. Mo.
1985); United States v. Chem-Dyne Corp., 572 F. Supp. 802, 808-11
(S.D. Ohio 1983). See also Developments in the Law— Toxic Waste
Litigation, 99 Harv. L. Rev. 1498, 1517-43 (1986).

ee ee eT
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lil. CERCLA— RETROACTIVITY
A. Application of CERCLA to Pre-1980 Acts.

Appellants first argue the district court erred in applying
CERCLA retroactively, that is, to impose liability for acts com-
mitted before its effective date, December 11, 1980. CERCLA §
302(a), 42 U.S.C. § 9652(a), provides that ‘‘[u]nless otherwise
provided, all provisions of this chapter shall be effective on
December 11, 1980.’’ Appellants argue that CERCLA should
not apply to pre-enactment conduct that was neither negligent
nor unlawful when committed. Appeliants argue that all the
conduct at issue occurred in the early 1970s, well before
CERCLA became effective. Appellants also argue that there is
no language supporting retroactive application in CERCLA’s
liability section, CERCLA § 107, 42 U.S.C. § 9607, or in the
legislative history. Appellants further argue that because
CERCLA imposes a new kind of liability, retroactive applica-
tion of CERCLA violates due process and the taking clause. We
disagree.

The district court correctly found Congress intended
CERCLA to apply retroactively. Jd. at 839. We acknowledge
there is a presumption against the retroactive application of
statutes. See United States v. Security Industrial Bank, 459
U.S. 70, 79 (1982). We hold, however, that CERCLA § 302(a),
42 U.S.C. § 9652(a), is ‘‘merely a standard ‘effective date’ pro-
vision that indicates the date wnen an action can first be
brought and when the time begins to run for issuing regulations
and doing other future acts mandated by the statute.’’ United
States v. Shell Oil Co., 605 F. Supp. 1064, 1075 (D. Colo. 1985);
cf. Von Allmen v. Connecticut Teachers Retirement Board, 613
F.2d 356, 359-60 (2d Cir. 1979) (veterans statute).

Although CERCLA does not expressly provide for retroac-
tivity, it is manifestly clear that Congress intended CERCLA to
have retroactive effect. The language used in the key liability
provision, CERCLA § 107, 42 U.S.C. § 9607, refers to actions

eet |

— A-10 —

and conditions in the past tense: ‘‘any person who at the time of
disposal of any hazardous substances owned or operated,”’
CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), ‘‘any person who

. arranged with a transporter for transport for disposal,’’
CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), and ‘‘any person
who .. . accepted any hazardous substances for transport to...
sites selected by such person,’’ CERCLA § 107(a)(4), 42 U.S.C.
§ 9607(a)(4). See, e.g., United States v. Conservation Chemical
Co., 619 F. Supp. 162, 220 (W.D. Mo. 1985); United States v.
Sheli Oil Co., 605 F. Supp. at 1069-73; United States v. South
Carolina Recycling & Disposal, Inc., 20 EnvRt Rep. Cases
(BNA) 1753, 1760-62 (D.S.C. 1984)‘; United States v. A & F
Materials Co., 577 F. Supp. at 1259; United States v. Price, 577
F. Supp. 1103, 1111-12 (D.N.J. 1983); Ohio ex rel. Brown v.
Georgeoff, 562 F. Supp. 1300, 1312 (N.D. Ohio 1983); United
States v. Outboard Marine Corp., 556 F. Supp. 54, 57 (N.D. Il.
1982); United States v. Reilly Tar & Chemical Corp., 546 F.
Supp. 1100, 1113-14 (D. Minn. 1982); see generally
Developments in the Law— Toxic Waste Litigation, 99 Harv.
L. Rev. 1498 (1986) (Developments).

Further, the statutory scheme itself is overwhelmingly
remedial and retroactive. CERCLA authorizes the EPA to
force responsible parties to clean up inactive or abandoned
hazardous substance sites, CERCLA § 106, 42 U.S.C. § 9606,
and authorizes federal, state and local governements and private
parties to clean up such sites and then seek recovery of their
response costs from responsible parties, CERCLA §§ 104, 107,
42 U.S.C. §§ 9604, 9607. In order to be effective, CERCLA

‘ The court in United States v. South Carolina Recycling &
Disposal, Inc., 20 Env’t Rep. Cases (BNA) 1753, 1760 (D.S.C. 1984),
noted CERCLA does not appiy ‘‘retroactively’’ because it does not
impose liability for past conduct; rather, CERCLA imposes liability
upon those parties responsibie for causing certain conditions, that is,
the release or threatened release or hazardous substances, that are the
present or future results of their past actions.

— A-ll —

must reach past conduct. CERCLA’s backward-looking focus
is confirmed by the legislative history. See generally H.R. Rep.
No. 1016, 96th Cong., 2d Sess., reprinted ir 1980 U.S. Code
Cong. & Ad. News 6119 (CERCLA House Report). Congress
intended CERCLA ‘“‘to initiate and establish a comprehensive
response and financing mechanism to abate and control the vast
problems associated with abandoned and inactive hazardous
waste disposal sites.’’ Jd. at 22, 1980 U.S. Code Cong. & Ad.
News at 6125.

The district court also correctly found that retroactive ap-
plication of CERCLA does not violate due process. 579 F.
Supp. at 840-41. Appellants argue CERCLA creates a new
form of liability that is designed to deter and punish those who,
according to current standards, improperly disposed of hazar-
dous substances in the past. We disagree.

It is by now well established that legislative Acts ad-
justing the burdens and benefits of economic life come to
the Court with a presumption of constitutionality, and that
the burden is on one complaining of a due process viola-
tion to establish that the legislature has acted in an ar-
bitrary and irrational way. [L]egislation readjusting rights
and burdens is not unlawful solely because it upsets other-
wise settled expectations. This is true even though the ef-
fect of the legislation is to impose a new duty or liability
based on past acts.

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, i5 (1976)
(citations omitted). Due process is satisfied ‘‘simply by showing
tht the retroactive application of the legislation is itself justified
by a rational legislative purpose.’’ Pension Benefit Guarunty
Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984). ‘‘Provid-
ed that the retroactive application of a statute is supported by a
legitimate legislative purpose furthered by rational means,
judgments about the wisdom of such legislation remain within
the exclusive province of the legislative and executive branches .
ee © wr.

— A-12 —

Appellants failed to show that Congress acted in an arbitrary
and irrational manner. Cleaning up inactive and abandoned
hazardous waste disposal sites is a legitimate legislative purpose,
and Congress acted in a rational manner in imposing liability
for the cost of cleaning up such sites upon those parties who
created and profited from the sites and upon the chemical in-
dustry as a whole, NEPACCO, 579 F. Supp. at 841. See United
States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1398-99
(D.N.H. 1985); United States v. Conservation Chemical Co.,
619 F. Supp. at 221-22; United States v. Shell Oil Co., 605 F.
Supp. at 1072-73; United States v. South Carolina Recycling &
Disposal, Inc., 20 Env’t Rep. Cases (BNA) at 1761-62; see
generally Developments, 99 Harv. L. Rev. at 1556-62. We hold
retroactive application of CERCLA to impose liability upon
responsible parties for acts committed before the effective date
of the statute does not violate due process.

Appellants also summarily argue retroactive application of
CERCLA constitutes an unconstitutional taking of property.
We disagree. First, because appellants do not have a property
interest in the Denney farm site, we question appellants’ stan-
ding to raise a taking issue. Second, we hesitate to characterize
the government’s cleanup as a taking at all; the government’s
cleanup of the Denney farm site has not deprived the property
owner of any property interest. See United States v. Conserva-
tion Chemical Co., 619 F. Supp. at 216-17. Instead, the govern-
ment’s cleanup of the site abated an ‘‘imminent and substantial
endangerment’’ to the public health and the environment, thus
eliminating a public nuisance and restoring value to the property
by removing the hazardous substances. See generally
Developments, 99 Harv. L. REv. at 1564-65 & nn.111, 114,
citing Blaymore, Retroactive Application of Superfund: Can
Oid Dogs Be Taught New Tricks?, 12 B.C. Envtl. Aff. L. Rev.
1, 43-46 (1985).

— A-13 —

B. Application of CERCLA to Pre-1980 Costs

Related to the question of CERCLA’s application to pre-1980
acts is the question whether the government can recover
response costs incurred prior to CERCLA’s effective date. This
issue is raised by the government’s cross-appeal. The district
court held that the government could not recover its pre-
enactment response costs. NEPACCO, 579 F. Supp. at 841-43.
The government argues on cross-appeal that the district court
erred in denying the government recovery of its pre-eCERCLA
response costs. The government argues a close examination of
the statutory language and scheme, legislative history and
legislative purpose supports retroactive liability for pre-
enactment response costs.

The district court concluded that because of the magnitude of
the potential liability for pre-enactment response costs, ‘‘it is
difficult to believe that if Congress had intended to make the
defendants liable for pre-CERCLA expenses, it would not have
said so explicitly and clearly in the statutory language, commit-
tee reports or floor debates.’’ Id. at 843; accord United States
v. Wade, 20 Env’t Rep. Cases (BNA) 1849, 1850-51 (E.D. Pa.
1984). The district court found that CERCLA itself did not
clearly specify whether pre-enactment response costs were
recoverable because the ‘‘statutory language ‘all costs . . . incur-
red’ [in CERCLA § 107(a),] 42 U.S.C. § 9607(a), is susceptivle
to varying interpretations, either all costs incurred regardless of
when incurred or all costs incurred from the date of
enactment.’’ Jd. at 842. The district court noted that ‘‘[t]he
[NCP] makes no provision for the recovery of pre-CERCLA
response costs,”’ id., citing 40 C.F.R. Part 300 (1983), and that
the ‘‘time limitations placed in sections 104(c)(3), 107(f) and
111(d)(1) [,42 U.S.C. §§ 9607(c)(3), (f), 9677(d),}] could equally
indicate that these are the only provisions in which pre-
CERCLA costs may be recoverable.’’ Id. The district court also
found the legislative history ‘‘unpersuasive’’ because recovery
of pre-CERCLA response costs was not discussed at all in the

— on

House, id. at 843 n.21, and the only references to authority to
recover pre-CERCLA response costs in the Senate, § 4(a))2) and
§ 4(n) of S. 1480, were deleted and not enacted. /d. at 843.

After the present case was decided, this issue was exhaustively
examined and resolved in favor of recovery of pre-CERCLA
response costs in United States v. Shell Oil Co., 605 F. Supp. at
1072-79. We find the analysis in United States v. Shell Oil Co.
to be convincing. Accord Mayor of Boonton v. Drew Chemical
Corp., 621 F. Supp. 663, 668-69 (D.N.J. 1985); United States v.
Ward, 618 F. Supp. 884, 989-99 (E.D.N.C. 1985).

In United States v. Shell Oil Co. the federal government sued
under CERCLA §§ 104, 107, 42 U.S.C. §§ 9604, 9607, to
recover the costs it had incurred and will incur in cleaning up the
heavily contaminated Rocky Mountain Arsenal located outside
of Denver, Colorado. The Rocky Mountain Arsenal has been
owned by the United States since 1942 and was used by the
United States Department of the Army for manufacturing and
handling various chemicals and munitions. In addition, since
1947, Shell Oil and its predecessors had leased part of the
Arsenal for the manufacture of pesticides, herbicides and other
chemicals. The Army’s wastes and all or some of Shell’s wastes
were disposed of through, waste disposal systems built and
operated by the Army. The waste disposal systems repeatedly
failed and released the commingled wastes into the environ-
ment, severely contaminating the Arsenal and threatening the
surrounding environment. In 1975 the Army began to clean up
the Arsenal. By December 1, 1983, before CERCLA was
enacted, the Army had incurred about $48 million in response
costs and, by January 1984, had proposed four alternative
cleanup programs, with estimated future response costs ranging
from $210 million to $1.8 billion, and recommended the pro-
gram estimated to cost $360 million. Shell argued, among other
things, that CERCLA did not authorize recovery of the Army’s
pre-enactment response costs.

— A-15 —

The Shell Oil court disagreed and held CERCLA authorized
recovery of pre-enactment response costs. 605 F. Supp. at 1079.
First, the Shel/ Oil court agreed with the district court in the pre-
sent case-that ‘‘congressional intent to either impose or
withhold liability for response costs incurred before CERCLA
cannot be divined from the verb tenses in [CERCLA] § 107)a)
[,.42 U.S.C. § 9607(a)].’’ Jd. at 1073. The Shell Oii court ex-
amined the grammatical structure of CERCLA § 107(a), 42
U.S.C. § 9607(a), and concluded hat each party’s argument
cancelled the other out. J/d., cit 1g Ohio ex rel. Brown v.
Georgeoff, 562 F. Supp. at 1309-10. Shell had argued that ‘‘use
of the imperative ‘shall’ . . . indicate[d] [that Congress] intend-
ed prospective operation of the liability provision.’’ 605 F.
Supp. at 1073. The government had argued, however, that ‘‘all
the other verbs in [CERCLA] § 107(a) [, 42 U.S.C. § 9607(a),]
including ‘costs . . . incurred,’ [were] in the past tense (with the
exception of ‘accepts’). . . . [and thus should] be interpreted to
include pre-enactment events.’’ Jd.

The Shell Oil court did not address the NCP’s failure to pro-
vide for recovery of pre-CERCLA response costs. The Shell Oil
court, however, considered and rejected the related argument
that the requirement in CERCLA § 107(a), 42 U.S.C. § 9607(a),
that recoverable costs were those costs ‘‘not inconsistent with
the [NCP]’’ indicated Congress’ intent that liability for costs
was prospective only. The She// Oil court concluded the ‘‘[t}he
consistency requirement addresses the nature of the response ac-
tion for which costs can be recovered, not the timing of the ac-
tion.’’ Jd. at 1074. The Sheil/ Oil court also refused to interpret
the effective date provision, CERCLA § 302(a), 42 U.S.C. §
9652(a), to limit liability to pre-enactment response costs. /d. at
1075.

Because CERCLA §§ 107(c)(3), 107(f) and 111(d), 42 U.S.C.
§§ 9607(c)(3), (f), 9611(d), contain express time limitations, the
absence of any time limitations in CERCLA § 107(a), 42 U.S.C.
§ 9607(a), arguably supports only prospective liability for

— A-16 —

response costs. CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3),
provides a state with a credit against its share of future
maintenance costs for its documented cleanup costs expended
after January 1, 1978 and before December 11, 1980, for
CERCLA § 111, 42 U.S.C. § 9611, actions. This provision
specifies the funding relationship between the federal govern-
ment and individual states for future maintenance costs and
does not address whether the government can recover pre-
CERCLA response from responsible parties.

CERCLA § 107(a)(4)(A)-(C), 42 U.S.C. § 9607(a)(4)(A)-(C),
sets forth three types of liability: (A) response costs incurred by
the United States or a state that are not inconsistent with the
NCP, (B) any other necessary response costs incurred by any
other person that are consistent with the NCP, and (C) natural
resource damages. By separately considering the place of each
type of liability in the statutory scheme, we can discern Congres-
sional intent with respect to recovery of pre-enactment response
costs. CERCLA §§ 107(f), 111(d)(1), 42 U.S.C. §§ 9607(f),
9611(d)(1), preclude recovery of natural resource damages and
claims for such damages against the Superfund if the release of
hazardous substances and the resulting natural resource injury
occurred wholly before CERCLA’s enactment. The Sheil Oil
court noted the provisions authorizing recovery of response
costs by the government, CERCLA § 107(a)(4)(A), 42 U.S.C. §
9607(a)(4)(A), and by any other person, CERCLA §
107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B), do not contain time
limitations and decided ‘‘[iJn order to give meaning to these
[time limitation] provisions [in CERCLA §§ 107(f), 111(d)(1),
42 U.S.C. §§ 9607(f), 9611(d)(1)], one must assume that liability
for other damages — costs of removal or remedial action incur-
red by the United States or a State (§ 107(a)(4)(A)), and other
necessary response costs incurred by any other person (§
107(a)(4)(B)) — is not so limited.’’ 605 F.Supp. at 1076. Thus,
the Shell Oil court concluded ‘‘Congress implicitly authorized
retroactive application of sections 107(a)(4)(A) and (B) by affir-
matively limiting retroactive application of the third category of

—

liability, damages to natural resources, section 107(a)(4)(C).”’
Id. Cf. United States v. Conservation Chemical Co. 619 F.
Supp. at 213 (three year statute of limitations in CERCLA §
112(d), 42 U.S.C. § 9612(d), applies only to claims against the
Superfund and for natural resource damages), citing United
States v. Mottolo, 605 F. Supp. 898, 901-10 (D.N.H. 1985).

As further explained by the She// Oil court

[t]here is good reason to preclude use of CERCLA
monies and liability for cleanup of sites where both the
release and the damages occurred wholly before enact-
ment. The sites excluded under 107(f) and 111(d) are
stable sites, that is, the environment, though damaged, will
not deteriorate further. ...Congress apparently decided to
utilize the limited resources of the fund created by
CERCLA to clean up the thousands of sites. . .which are
not stable. CERCLA’s goal is to clean up these sites
before further damage occurs.

At the opposite end of the spectrum from the stable sites
excluded under 107(f) and 111(d) are those sites. . .where
the danger to the public health and welfare and to the en-
vironment was so imminent that the United States proceed-
ed with cleanup without a special fund of money for that
purpose and without assurance that it would be repaid by
the persons responsible for the contamination. It was sites
containing this magnitude of public danger that prompted
Congress to enact CERCLA.

Construing section 107(a) to preclude recovery of pre-
enactment response costs would carve out an exception to
the general retroactive scheme of the statute for those most
severe situations where. . .the government’s response com-
menced prior to the enactment of the statute. ... Congress
could [not] have intended to protect the public fisc by im-
posing liability on the responsible parties, yet except the
sites where response had already commenced because the

'

— A-18 —

situations were the most imminently threatening. Such an
interpretation would penalize the government for prompt
response and provide an undeserved windfall to the parties
who had created, then abandoned, some of the most
egregious sites.

605 F. Supp. at 1076-77.

The Shell Oil court then reviewed the legislative history of
CERCLA, including the treatment of § 4(a)(2) and § 4(n) of S.
1480, and concluded it supported imposing liability for pre-
enactment response costs. Jd. at 1077-79. The legislative
history of CERCLA is very difficult to follow, in part because

[t]wo different bills proceeded through the House and the
Senate. The Senate made certain last minute amendments
to its bill, (S. 1480, 96th Cong., 2d Sess. 1980), most
notably the removal of provisions imposing liability for
personal injury caused by hazardous waste disposal. The
House then struck the language in its bill, H.R. 7020, 96
Cong.2d Sess. (1980), and substituted the language of the
Senate bill. H.R. 7020, as amended, was eventually
enacted. The bill retained the House file number, ap-
parently because of a requirement that appropriations
measures Originate in the House.

United States v. Reilly Tar & Chemical Corp., 546 F. Supp. at
1111. As explained by the Shel! Oil court

[t}he liability provisions of CERCLA were derived large-
ly from the original Senate bill, S. 1480. S. 1480 contained
a liability provision for both costs of removal (§ 4(a)(1))
and for natural resources, property and personal injury
damages (§ 4(a)(2)). During discussions of S. 1480 in the
Senate Committee on Environment and Public Works,
concern was expressed about retroactive application of the
bill. ... Senator Domenici introduced a new § 4(n) which
limited recovery for pre-enactment damages recoverable
under § 4(a)(2).

— A-19 —

Significantly, § 4(n)(1) did not apply to § 4(a)(1) which
provided liability for response costs. The Senate report [at
37] emphasized the limited scope of § 4(n): .. .‘*Costs of
removal (cleanup and containment) are not affected by this
provision, nor are any damages associated with continuing
releases.”’

605 F. Supp. at 1077-78. As noted by the district court in the
present case, both § 4(a)(2) and § 4(n) were deleted from the
enacted bill. 579 F. Supp. at 843. We agree with the Shei/ Oil
court, however, that the deletion of these subsections in fact in-
dicates Congress intended to permit recovery of pre-CERCLA
response costs because

[t]he time limitations on damages added by § 4({n) of S.
1840 were maintained in the final version of CERCLA as
the §§ 107(f) and 111(d) limitations on recovery of natural
resources damages. The remaining time limitations of §
4(n) were deleted only because the substantive liability pro-
visions for property and personal injury damages [in §
4(a)(2)] were deleted from the statute. Thus, the scheme of
§ 4(n) in limiting recovery for pre-enactment damages, but
not response costs, was maintained in the final statute. The
legislative history of § 4(n), including the comments em-
phasizing that recovery of removal costs is not to be
limited by retroactivity concerns, therefore applies to the
statute as passed.

605 F. Supp. at 1079 (emphasis added).

In summary, we hold the district court erred in finding that
CERCLA does not authorize recovery of pre-enactment
response costs. That part of the district court judgment holding

that pre-enactment response costs cannot be recovered is revers-
ed.

—

IV. RCRA
A. Standard and Scope of § 7003 Liability

As an alternative basis for recovery of the response costs in-
curred before December 11, 1980, the government argues on
cross-appeal that it can also recover its response costs pursuant
to RCRA § 7003(a), 42 U.S.C.A. § 9673(a) (West Supp. 1986).
The district court did not reach the recovery issue because it
held that under RCRA § 7003(a), 42 U.S.C. § 6973(a) (prior to
1984 amendments discussed below), proof of fault or negligence
was required in order to impose liability upon past off-site
generators and transporters. 579 F. Supp. at 834-37. Because
the government did not allege or prove negligence, the district
court found no liability under RCRA § 7003(a), 42 U.S.C. §
9673(a) (prior to 1984 amendments). /d. at 837. The govern-
ment argues that the standard of liability under RCRA §
7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986), as initially
enacted and as amended in 1984, is strict liability, not
negligence, and that liability under RCRA can be imposed even
though the acts of disposal occurred before RCRA became ef-
fective in 1976. We agree.

RCRA was initially enacted in 1976, Pub. L. No. 94-580, 90
Stat. 2826 (1976), and was amended in 1978, Pub. L. No.
95-609, 92 Stat. 3083 (1978), and 1980, Pub. L. No. 96-482, 92
Stat. 2348 (1980). In November 1984, after the district court’s
January 1984 decision in the present case, RCRA was again
amended by the Hazardous and Solid Waste Amendments of
1984, Pub. L. No. 98-616, 98 Stat. 3271 (1984) (1984 amend-
ments). We have considered the 1984 amendments and the ac-
companying legislative history and, for the reasons discussed
below, we believe the 1984 amendments support the govern-
ment’s arguments about RCRA’s standard and scope of liability
and retroactivity.

The critical issue is the meaning of the phrase ‘‘contributing
to.’’ Before its amendment in 1984, RCRA § 7003(a), 42

— A-21 —

U.S.C. § 6973(a), imposed liability upon any person ‘“‘con-
tributing to’’ ‘‘the handling, storage, treatment, transportation
or disposal of any solid or hazardous waste’’ that ‘‘may present
an imminent and substantial endangerment to health or the en-
vironment.’’ The district court did not find either the statutory
language or the statutory framework helpful in determining
whether past non-negligent off-site generators and transporters
were liable under RCRA § 7003(a), 42 U.S.C. § 6973(a) (prior to
the 1984 amendments). 579 F. Supp. at 834. The district court
then considered the legislative history of the 1980 amendments,
id. at 835-36, because ‘‘[t]he legislative history of the [RCRA] as
originally enacted contains no specific discussion of the reach of
section 7003 and no mention of the reasons for its insertion. The
hastiness of the [RCRA’s] passage in the final days of a congres-
sional session has been well-documented.’’ United States v.
Waste Industries, Inc. 734 F.2d 159, 165 (4th Cir. 1984), citing
Kovacs & Klucsik, The New Federal Role in Solid Waste
Managemet: The Resource Conservation & Recovery Act of
1976, 3 Colum. J. Envtl. L. 205, 216-20 (1976).

The district court found two apparently contradictory
references in the legislative history. The report on Hazardous
Waste Disposal issued by the Subcommittee on Oversight and
Investigations of the Committee on Interstate aad Foreign
Commerce, H.R. Comm. Print No. IFC 31, 96th Cong., Ist
Sess. 31 (1979) (the Eckhardt Report), stated that ‘‘a company
that generates hazardous waste would be someone ‘contributing
to’ an endangerment under § 7003, even where someone else
deposited the waste in an improper disposal site similar to strict
liability under common law.”’ The strict liability language in the
Eckhardt Report, however, was not adopted later in the Senate
Report, which stated

a company that generated hazardous waste might be so-
meone ‘‘contributing to’’ air endangerment under section
7003 even where someone else deposited the waste in an
improper disposal site (similar to strict liability under com-
mon law), where the generator had knowledge of the illicit

—

disposal or failed to exercise due care in selecting or in-
structing the entity actually conducting the disposal.

S. Rep. No. 172, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.
Code Cong. & Ad. News 5019, 5023. The district court resolved
the battle between the conflicting legislative references in favor
of the Senate Report and held that the language in the Senate
Report ‘‘would suggest strict liability of present responsible lan-
downers, but the qualifying phrases ‘illicit disposal or failed to
exercise due care’ requires a finding of negligence prior to
holding past off-site generators or transporters liable.’’ 579 F.
Supp. at 836; accord United States v. Waste Industries, Inc.,
556 F. Supp. at 1308; United States v. Wade, 546 F. Supp. at
790. But see, e.g., United States v. Reilly Tar & Chemical Corp.
546 F. Supp. at 1108; United States v. Price, 523 F. Supp. 1055,
1070-71 (D.N.J. 1981), aff’d, 688 F.2d 204 (3d Cir. 1982);
United States v. Diamond Shamrock Corp., 17 Env’t Rep.
Cases (BNA) 1329, 1333-34 (N.D. Ohio 1981); United States v.
Solvents Recovery Service, 496 F. Supp. 1127, 1139 (D. Conn.
1980).

Then, in November 1984, Congress passed and President
Reagan signed the 1984 amendments, which were described as
‘*clarifying’’ amendments and specifically addressed the stan-
dard and scope of liability of § 7003(a). As amended in 1984,
RCRA § 7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986)
(new language underlined; deleted language in brackets), now
provides in pertinent part:

Notwithstanding any other provision of this chapter, upon
receipt of evidence that the past or present handling,
storage, treatment, transportation or disposal of any solid
waste or hazardous 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 [to immediately
restrain any person] against any person (including any past
or present generator, past or present transporter, or past or

— A-23 —

present owner or operator of a treatment, storage, or
disposal facility) who has contributed or who is con-
tributing to such handling, storage, treatment, transporta-
tion or disposal [to stop] to reatrain such person from such
handling, storage, treatment, transportation, or disposal
[or to take such other action as may be necessary], /o order
such person to take such other action as may be necessary,
or both.

As amended, RCRA § 7003(a), 42 U.S.C.A. § 6973(a) (West
Supp. 1986), specifically applies to past generators and
transporters. See United States v. Ottari & Gross, Inc. 630 F.
Supp. at 1400 (applying RCRA as amended in 1984); United
States v. Conservation Chemical Co., 619 F. Supp. at 217-18
(applying RCRA as amended in 1984).

Congress’ intent with respect to the standard of liability under
RCRA § 7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986), as
amended by the 1984 amendments, is clearly set forth in the ac-
companying House Conference Report.* The House Con-

* The earlier House Report also stated:

[t]hese amendments are intended to clarify the breadth of Sec-
tion 7003 as to the persons, conditions and acts it covers. The
amendments clearly provide that anyone who has contributed or
is contributing to the creation, existence, or maintenance of an
imminent and substantial endangerment is subject to the
equitable authority of Section 7003, without regard to fault or
negligence. Such persons include, but are not limited to, past
and present generators (both off-site and on-site) of hazardous
wastes, past and present owners and operators of waste treat-
ment, storage, or disposal facilities, and past and present
transporters of solid or hazardous wastes. \n addition, Section
7003 is clarified to establish that it applies to any act, whether
past or present, which has resulted in or may result in an immi-
nent and substantial endangerment to public health or the en-
vironment....

As evidenced by the definition of ‘‘disposal’’ in Section
1004(3), which includes the ‘‘leaking’’ of hazardous wastes, Sec-
tion 7003 has always provided the authority to require the abate-

ie il ill

——

ference Report also expressly disapproved of the Wade and
Waste Industries cases, which were relied upon by the
NEPACCO court, as well as the NEPACCO decision itself. The
House Conference Report stated:

ment of present conditions of endangerment resulting from past
disposal practices, whether intentional or unintentional... .

Moreover, because Section 7003 focuses on the abatemeni of
conditions threatening health and the environment and not a
particular human activity, it has a/ways 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 par-
ticular site may be ordered to abate the hazard to health or the
environment posed by the leaking of wastes they once deposited
or caused to be deposited on the site. The amendment reflects
the long-standing view that generators and other persons involv-
ed in the handling, storage, treatment, transportation, or
disposal of hazardous wastes must share in the responsibility for
the abatement of the hazards arising from their activities.

In addition, due 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, 213-14 (3d Cir. 1982). The
section was intended and is intended to abate conditions
resulting from past activities. Hence, the lower court decisions
in United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982), and
United States v. Waste Industries, Inc., No. 80-4-Civ-7
(E.D.N.C. 1983), which restricted the application of Section
7003, are inconsistent with the authority conferred by the section
as initially enacted and with these clarifying amendments.

H.R. Rep. No. 198 (Part I), 98th Cong., 2d Sess. 47-49 (1983) (em-
phasis added), reprinted in 1984 U.S. Code Cong. & Ad. News 5576,
5606-09 (emphasis added).

— A-25 —

Section 7003 focuses on the abatement of conditions
threatening health and the environment and not particular-
ly 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 environ-
ment 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, treat-
ment, transportation or disposal of hazardous wastes must
share in 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 ac-
tivities. Hence, the district court decisions in United States
v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982), United States
v. Waste Industries, Inc., No. 80-4-Civ-7 (E.D.N.C. 1983),
and United States v. Northeastern Pharmaceutical &
Chemical Co., 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.

H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. 119 (1984)
(emphasis added), reprinted in 1984 U.S. Code Cong. & Ad.
News 5649, 5690 (emphasis added).

Thus, following the 1984 amendments, past off-site
generators and transporters are within the scope of RCRA §
7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986). From the
legislative history of the 1984 amendments, it is clear that Con-
gress intended RCRA § 7003(a), 42 U.S.C.A. § 6973(a) (West

— A-26 —

Supp. 1986), as initially enacted and as amended, to impose
liability without fault or negligence and to apply to the present
conditions resulting from past activities. In other words, RCRA
§ 7003(a), 42 U.S.C.A. § 6973(aj (West Supp. 1986), as initially
enacted and as amended, applies to past non-negligent off-site
generators like NEPACCO and to non-negligent past
transporters like Mills. See United States v. Ottati & Goss, Inc.,
630 F. Supp. at 1400-01 (applying RCRA as amended in 1984),
citing United States v. Hardage, 18 Env’t Rep. Cases (BNA)
1685, 1686 (W.D. Okla. 1982) (RCRA as amended in 1980);
United States v. Conservation Chemical Co., 619 F. Supp. at
198.

Appellants argue, however, that the 1984 amendments should
not be applied to them because the 1984 amendments are not
merely ‘‘clarifying’’ amendments but instead substantively
changed the existing law. We disagree. First, Congress itself ex-
pressly characterized the 1984 amendments as ‘‘clarifying’’
amendments. Second, as part of the legislative history of the
1984 amendments, Congress expressly stated what its intention
had been when it initially passed the RCRA in 1976, even
though the 1976 legislative history contained no specific discus-
sion of the standard and scope of liability of § 7003(a).

Although this is not legislative history as such, the views of
subsequent Congresses on the same or similar statutes are
entitled to some weight in the construction of previous
legislation. Although the views of subsequent Congresses
cannot override the unmistakable intent of the enacting
one, this is not a problem in this case because there was no
absolutely ‘‘unmistakable intent’’ of Congress concerning
section 7003. To the extent that the precise intent of the
enacting Congress may be obscure, the views of subse-
quent Congresses should be given greater deference than
they wouid be otherwise entitled to receive.

United States v. Waste Industries, Inc., 734 F.2d at 166 (discuss-
ing legislative history of 1980 RCRA amendments) (citations

—

omitted); see also Seatrain Shipbuilding Corp. v. Shell Oil Co.,
444 U.S. 572, 596 (1980). Thus, by passing the 1984 amend-
ments, the 98th Congress made clear that the intention of the
94th Congress in enacting the RCRA in 1976 had been to impose
liability upon past non-negligent off-site generators and
transporters of hazardous waste.

B. Retroactivity

This argument is closely related to the question of the scope
of § 7003(a) liability discussed above. Appellants argue that
because RCRA, unlike CERCLA, is prospective in focus and
was not enacted until 1976, RCRA cannot be retroactively ap-
plied to impose liability on them for acts that occurred in 1971.
A similar retroactivity argument was raised in United States v.
Price, 523 F. Supp. at 1071-72. The defendants in United States
v. Price had argued that RCRA could not be applied retroac-
tively to impose liability on them for disposing of toxic wastes in
1972. The Price court rejected the retroactivity argument,
stating

[t]he gravamen of a section 7003 action . . . is not defen-
dants’ dumping practices, which admittedly ceased with
respect to toxic wastes in 1972, but the present imminent
hazard posed by the continuing disposal [, which is defined
by RCRA § 1003(3), 42 U.S.C. § 6903(3), to include *‘[t}he
... leaking... of any solid waste or hazardous waste into
or on any land or water,’’] of ccntaminants into the
groundwater [for into the environment]. Thus, the statute
neither punishes wrongdoing nor imposes liability for in-
juries inflicted by past acts. Rather, as defendants
themselves argue, its orientation is essentially prospective.
When construed in this manner, the statute is simply not
retroactive. It merely relates to current and future condi-
tions.

Id. at 1071; accord United States v. Diamond Shamrock Corp.,
17 Env’t Rep. Cases (BNA) at 1333-34; cf. United States v.

— A-28 —

South Carolina Recycling & Disposal, Inc., 20 Env’t Rep. Cases
(BNA) at 1760-61 (similar analysis of CERCLA). We hold
RCRA is not retroactive because it imposes liability for the pre-
sent and future conditions resulting from past acts. But cf.
United States v. Conservation Chemical Co., 619 F. Supp. at
220-22 (holding RCRA should be considered a retroactive law,
but finding no due process violation).

In summary, we hold that RCRA § 7003(a), 42 U.S.C.A. §
6973(a) (West Supp. 1986), as initially enacted and as clarified
by the 1984 amendments, imposes strict liability upon past off-
site generators of hazardous waste and upon past transporters
of hazardous waste. We reverse that part of the district court
judgment holding that RCRA does not apply to past non-
negligent off-site generators and transporters.

V. SCOPE OF LIABILITY

The district court found NEPACCO liable as the ‘‘owner or
operator’? of a ‘‘facility’’ (the NEPACCO plant) under
CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), and as a
‘*person’’ who arranged for the transportation and disposal of
hazardous substances under CERCLA § 107(a)(3), 42 U.S.C. §
9607(a)(3). 579 F. Supp. at 847. The district court found Lee
liable as a ‘‘person’’ who arranged for the disposal of hazardous
substances under CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3),
id. at 847-48, and as an ‘‘owner or operator’’ of the NEPACCO
plant under CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), by
**piercing the corporate veil.’’ Jd. at 848-49. The district court
also found Michaels liable as an ‘‘owner or operator’’ of the
NEPACCO plant under CERCLA § 107(a)({1), 42 U.S.C. §
9607(a)(1). Jd. at 849.

Appellants concede NEPACCO is liable under CERCLA §
107(a)(3), 42 U.S.C. § 9607(a)(3), for arranging for the
transportation and disposal of hazardous substances at the Den-
ney farm site. Brief for Appellants at 25-26. Because NEPAC-
CO’s assets have already been liquidated and distributed to its

— A-29 —

shareholders, however, it is unlikely that the government wiil be
able to recover anything from NEPACCO.

Appellants argue (1) they cannot be held liable as ‘‘owners or
operators”’ of a ‘‘facility’’ because ‘‘facility’’ refers to the place
where hazardous substances are located and they did not own or
operate the Denney farm site, (2) Lee cannot be held individuai-
ly liable for arranging for the transportation and disposal of
hazardous substances because he did not ‘‘own or possess’’ the
hazardous substances and because he made those arrangements
as a corporate officer or employee acting on behalf of NEPAC-
CO, and (3) the district court erred in finding Lee and Michaels
individually liable by ‘‘piercing the corporate veil.’’ Appellants
have not claimed that any of CERCLA’s limited affirmative
defenses apply to them. See CERCLA’s limited affirmative
defenses apply to them. See CERCLA § 107(b)(1), (2), (3), 42
U.S.C. § 9607(b))1), (2), (3) (no liability if defendatn establishes
by preponderance of evidence that release was caused solely by
act of God, act of war, act or omission of third party other than
employee or agent or by contract only if defendant establishes
due care and precautions against foreseeable consequences
taken); see, e.g., United States v. Ward, 618 F. Supp. at 897-98;
United States v. Conservation Chemical Co., 619 F. Supp. at
203-04; see generally Developments, 99 Harv. L. Rev. at
1543-48.

The government argues Lee can be held individually liable
without ‘‘piercing the corporate veil,’’? under CERCLA §
107(a)(3), 42 U.S.C. § 9607(a)(3), and that Lee and Michaels
can be held individually liable as ‘‘contributors’’ under RCRA §
7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986). For the
reasons discussed below, we agree with the government’s liabili-
ty arguments.°®

* Despite the findings by the district court, the government did not
seek to impose liability upon NEPACCO, Lee and Michaels under
CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), as the owners or

— A-30 —

A. Liability under CERCLA § 107(a)(1), 42 U.S.C. §
9607(a)(1)

First, appellants argue the district court erred in finding them
liable under CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1), as
the ‘‘owners and operators’’ of a ‘‘facility’’ where hazardous
substances are located. Appellants argue that, regardless of
their relationship to the NEPACCO plant, they neither owned
nor operated the Denney farm site, and that it is the Denney
farm site, not the NEPACCO plant, that is a ‘‘facility’’ for pur-
poses of ‘‘owner and operator’’ liability under CERCLA §
107(a)(1), 42 U.S.C. § 9607(a)(1). We agree.

CERCLA defines the term ‘‘facility’’ in part as ‘‘any site or
area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located.”’
CERCLA § 101(9)(B), 42 U.S.C. § 9601(9)(B); see New York v.
Shore Realty Corp., 759 F.2d 1032, 1043 n.15 (2d Cir. 1985).
The term ‘‘facility’’ should be construed very broadly to include
‘‘virtually any place at which hazardous wastes have been

_ dumped, or otherwise disposed of.’’ United States v. Ward, 618
F. Supp. at 895 (definition of ‘‘facility’’ includes roadsides
where hazardous waste was dumped); see also United States v.
Conservation Chemical Co., 619 F. Supp. at 185 (stereotypical
waste disposal facility); New York v. General Electric Co., 592
F. Supp. 291, 296 (N.D.N.Y. 1984) (dragstrip); United States v.
Metate Asbestos Corp., 584 F. Supp. 1143, 1148 (D. Ariz. 1984)
scaulimiaeniiaaed _ *
operators of a facility where hazardous substances are located, and in
these appeals the government has expressed no opinion with respect to
‘owner and operator”’ liability under the circumstances in the present
case. Brief for Appellee at 46 n.23. The government further argues
that it is unnecessary to decide whether Michaels would also be liable
under CERCLA § 107)a)(3), 42 U.S.C. § 9607(a)(3), because RCRA §
7003(a), 42 U.S.C.A. § 6973(a) (West Supp. 1986), ‘‘so clearly fits the
circumstances of this case.’’ Brief for Appellee at 47 n.24. The

district court did not reach the question of Michaels’ liability under
CERCLA § 107(a), 42 U.S.C. § 9607(a). 579 F. Supp. at 849 n.31.

—

— A-31 —

(real estate subdivision). In the present case, however, the place
where the hazardous substances were disposed of and where the
government has concentrated its cleanup efforts is the Denney
farm site, not the NEPACCO plant. The Denney farm site is
the ‘‘facility.”’ Because NEPACCO, Lee and Michaels did not
own or operate the Denney farm site, they cannot be held liable
as the ‘‘owners or operators”’ of a ‘‘facility’” where hazardous
substances are located under CERCLA § 107(a)(1), 42 U.S.C. §
9607(a)(1).

B. Individual Liability under CERCLA § 107(a)(3), 42
U.S.C. § 9607(a)(3)

CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), imposes strict
liability upon ‘‘any person’’ who arranged for the disposal or
transporation for disposal of hazardous substances. As defined
by statute, the term ‘‘person’’ includes both individuals and
corporations and does not exclude corporate officers or
employees. See CERCLA § 101(21), 42 U.S.C. § 9601(21);
United Staies v. Ward, 618 F. Supp. at 894 (CERCLA); cf.
United States v. Pollution Abatement Services of Oswego, Inc.,
763 F.2d 133, 134-35 (2d Cir.) (individual liability for violation
of Rivers and Harbors Appropriation Act of 1899), cert.
denied, 106 S. Ct. 605 (1985). Congress could have limited the
statutory definition of ‘‘person’’ but chose not to do so. Com-
pare CERCLA § 101(20A), 42 U.S.C. § 9601(20A) (limiting
definition of ‘‘owner or operator’’). Moreover, construction of
CERCLA to impose liability upon only the corporation and not
the individual corporate officers and employees who are
responsbile for making corporate decisions about the handling
and disposal of hazardous substances would open an enormous,
and clearly unintended, loophole in the statutory scheme.

First, Lee argues he cannot be held individually liable for hav-
ing arranged for the transportation and disposal of hazardous
substances under CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3),
becuase he did not personally own or possess the hazardous

alll

— A-32 —

substances. Lee argues NEPACCO owned or possessed the
hazardous substances.

The government argues Lee ‘‘possessed’’ the hazardous
substances within the meaning of CERCLA § 107(a)(3), 42
U.S.C. § 9607(a)(3), because, as NEPACCO’s plant supervisor,
Lee had actual ‘‘control’’ over the NEPACCO plant’s hazar-
dous substances. We agree. It is the authority to confrol the
handling and disposal of hazardous substances that is critical
under the statutory scheme. The district court found that Lee,
as plant supervisor, actually knew about, had immedicate super-
vision over, and was directly responsible for arranging for the
transporation and disposal of the NEPACCO plant’s hazardous
substances at the Denney farm site. We believe requiring proof
of personal ownership or actual physical possession of hazar-
dous substances as a precondition for liability under CERCLA §
107(a)(3), 42 U.S.C. § 9607(a)(3), would be inconsistent with the
broad remedial purposes of CERCLA. Cf. United States v.
Mottolo, 14 Envtl. L. Rep. (Envtl. L. Inst.) 20497, 20499
(D.N.H. 1984) (person who arranges for disposal or transporta-
tion for disposal need not own or possess the hazardous waste).

Next, Lee argues that because he arranged for the transporta-
tion and disposal of the hazardous stubstances as a corporate
officer or employee acting on behalf of NEPACCO, he cannot
be held individually liable for NEPACCO’s violations. Lee also
argues the district court erred in disregarding the corporate enti-
ty by ‘‘piercing the corporate veil’? because there was no
evidence that NEPACCO was inadequately capitalized, the cor-
porate formalities were not observed, individual and corporate
interests were not separate, personal and corporate funds were
commingled or corporate property was diverted, or the cor-
porate form was used unjustly or fraudulently.

The government argues Lee can be held individually liable,
without ‘“‘piercing the corporate veil,’’ because Lee personally
arranged for the disposal of hazardous substances in violation

— A-33 —

of CERCLA §107)a)(3), 42 U.S.C. § 9607(a)(3). We agree. As
discussed below, Lee can be held individually liable because he
personally participated in conduct that violated CERCLA; this
personal liability is distinct from the derivative liability that
results from ‘‘piercing the corporate veil.’ ‘‘The effect of pier-
cing a corporate veil is to hold the owner [of the corporation]
liable. The rationale for piercing the corporate veil is that the
corporation is something less than a bona fide independent enti-
tv.”’ Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir.
1978). Here, Lee is liable because he personally participated in
the wrongful conduct and not because he is one of the owners of
what may have been a less than bona fide corporation. For this
reason, we need not decide whether the district court erred in
piercing the corporate veil under these circumstances.

We now turn to Lee’s basic argument. Lee argues that he
cannot be held individually liable for NEPACCO’s wrongful
conduct because he acted solely as a corporate officer or
employee on behalf of NEPACCO. The liability imposed upon
Lee, however, was not derivative but personal. Liability was
not premised solely upon Lee’s status as a corporate officer or
employee. Rather, Lee is individually liable under CERCLA §
107(a)(3), 42 U.S.C. § 9607(a)(3), because he personally arrang-
ed for the transportation and disposal of hazardous substances
on behalf of NEPACCO and thus actually participated in
NEPACCO’s CERCLA violations.

A corporate officer is individually liable for the torts he
[or she] personally commits [on behalf of the corporation]
and cannot shield himself [or herself] behind a corporation
when he [or she] is an actual participant in the tort. The
fact that an officer is acting for a corporation also may
make the corporation vicariously or secondarily liable
under the doctrine of respondeat superior; it does not
however relieve the individual of his [or her] responsibility.

Donsco, Inc. v. Casper Corp., 587 F.2d at 606 (citations omit-
ted); see New York v. Shore Realty Corp., 759 F.2d at 1052-53

— ill effects from this incident.

In March of 1971 there was a fire at the NEPACCO plant that
resulted in the destruction of at least two batches of reactants in
the hexachlorophene production phase of the process. Due to
extensive damage, the plant was closed down for several weeks

— A-56 —

in order to clean up the residue, waste and damaged equipment
created by the fire. Some of the substances contained in the
production lines were saved and reused. During the summer of
1971, Lee and Ray initiated a major plant cleanup. The waste
and residue from the major cleanup were stored in the waste
storage area northwest of the plant building. This storage area
also contained refuse and wastes that had accumulated since the
opening of the plant.

NEPACCO used black drums with lids fastened by metal
rings for disposal of waste. According to the testimony,
Hoffman-Taff had used green and white drums to hold wastes
and several of these green and white drums remained on the
plant property after Hoffman-Taff ceased operations. Defen-
dant Lee testified that he originally noticed some of these green
and white drums stored on the eastern side of the plant building,
but by mid-1971, these drums had been moved to the northwest
storage area.

Disposal of Hazardous Waste at NEPACCO

Initially, the still bottoms residues from the NEPACCO pro-
cess were carried away in transport tanker trucks by Rollins-
Purle to their disposal plant in Louisiana. Later, due to cost
considerations, NEPACCO changed from Rollins-Purle to In-
dependent Petrochemical Corporation (IPC). Michaels was
present during negotiations with IPC over the contract to haul
still bottom residues from the NEPACCO plant and warned the
IPC representatives that the still bottoms were toxic and had to
- be handled and disposed of with care.

In or about July of 1971, defendant Mills approached Ray
concerning the disposal of the 55-gallon drums located in the
storage area northwest of the plant. Méills was not in the
business of waste disposal prior to this-date. Ray discussed the
proposal with Lee. Lee defined the desirable disposal site
characteristics, which included soil with a flint or clay consisten-
cy. There was credible evidence that Lee knew and approved of

g
:
3
|

—

v. Solvents Recovery Service of New England, 496 F.Supp.
1127, 1140 n.18 (D. Conn. 1980); and Waste Industries, 556
F.Supp. at 1311 n.21 and 1312 (acknowledges weight to be given
subsequent legislative history, but adds a caveat).

9. As noted by the court in Waste Industries, 556 F.Supp. at
1312, the Eckhardt Report is also subject to numerous internal
inconsistencies and interpretations that were found not to be
consistent with imposing strict liability on past off-site
generators and transporters. Jd.

10. The legislative history surrounding the passage of
CERCLA supports this Court’s conclusion. The House Report
accompanying the passage of CERCLA states:

(c) Deficiencies in RCRA have left important regulatory
gaps.

(1) [RCRA] is prospective and applies to past sites only
to the extent that they are posing an imminent hazard.
Even then the Act is no help if a financially responsible
owner of the site cannot be located.

* * * *

It is the intent of the Committee in [CERCLA] to initiate
and establish a comprehensive response and financing
mechanism to abate and control the vast problems
associated with abandoned and inactive hazardous waste
disposal sites.

H.R. Rep. No. 1016, Part I, 96th Cong., 2d Sess. 22, reprinted
in [1980] U.S. Code Cong. & Ad. News 6119, 6125 (emphasis
added). The Committee reiterated the inadequacies of RCRA
in dealing with inactive sites, in stating, ‘“The [EPA] may sue to
require cleanup of an inactive disposal site if the site is posing an
imminent and substantial hazard to public health. However,
this provision does not provide funds for cleanup of inactive
sites when the owner is unknown, is not responsible, or is finan-
cially unable to pay for these costs.’” H.R.Rep. No. 1016, Part

eit —

Il, 96th Cong., 2d Sess. 4, reprinted in [1980] U.S. Code Cong.
& Ad. News 6151, 6153. See Waste Industries, 556 F.Supp. at
1318 and secondary authorities cited therein; and United States
v. Price, No. 80-4104, slip op. at 12 (D. N.J. July 28, 1983). For
a similar analysis of the deficiencies in RCRA, see Hazardous
Waste Disposal: Hearings Before the Subcomm. on Oversight
and Investigations of the House Comm. on Interstate and
Foreign Commerce, 96th Cong., Ist Sess. pt. 1-4 (1979); Sub-
comm. on Oversight and Investigations of the House Comm. on
Interstate and Foreign Commerce, 96th Cong., Ist Sess., Report
on Hazardous Waste Disposal 3 (Comm. Print 1979); Inactive
or Abandoned Hazardous Waste Disposal Sites: Coping With a
Costly Past, 53 S.Cal. L. Rev. 1709, 1716 (1980); and Goldfarb,
The Hazards of Our Hazardous Waste Policy, 19 Nat.
Resources J. 249 (1979). Even the EPA apparently concurs in
this court’s conclusion, ‘‘We can only exercise [section 7003]
where the [site] owner...is identifiable and financially and
otherwise able to remedy [the damages]. ... In addition, if the
perpetrator is unknown...cannot be located, cannot afford
cleanup, or declares bankruptcy and walks away from the sit
. . [section 7003] is not an effective tool.’’ Hazardous and rol
ic Waste Disposal: Joint Hearings on S.1341 and § '480 Before
the Subcomm’s on Environmental Pollution and Resource Pro-
tection of the Senate Comm. on Environment and Public
Works, (part 4), 96th Cong., Ist Sess., 7, 43 (1979) (statement
of Thomas C. Jorling, Assistant Administrator, Water and
Waste Management, EPA). Accord Wade, 546 F.Supp. at 791.
See Waste Industries, 556 F.Supp. at 1314 and n.23 (‘‘agency’s
view is entitled to substantial deference’’ (citation omitted)). See
generally Note, Liability for Generaiors of Hazardous Waste:
The Failure of Existing Enforcement Mechanisms, 69 Geo. L.J.
1047, 1053-55 (1981).

11. See United States v. Price, 688 F.2d 204 (3d Cir. 1982);
United States v. Price, No. 80-4104 (D. N.J. July 28, 1983);
State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300 (N.D. Ohio

— A-98 —

1983); United States v. Waste Industries, 556 F.Supp. 1301
(E.D. N.C. 1982); United States v. Outboard Marine Corp., 556
F.Supp. 54 (N.D. Ill. 1982); United States v. Wade, 546
F.Supp. 785 (E.D. Pa. 1982); United States v. Reilly Tar &
Chemical Corp., 546 F.Supp. 1100 (D. Minn. 1982); City of
Philadelphia v. Stephan Chemical Co., 544 F.Supp. 1135 (E.D.
Pa. 1982); United States v. Hardage, No. Civ. 80-1031-W
(W.D. Okla. Sept. 29, 1982); United States v. Price, 523
F.Supp. 1055 (D. N.J. 1981); McCastle v. Rollins Environmen-
tal Services, 514 F.Supp. 936 (M.D. La. 1981); United States v.
Diamond Shamrock Corp., No. C80-1857 (N.D. Ohio May 29,
1981); United States v. Solvents Recovery Service of New
England, 496 F.Supp. 1127 (D. Conn. 1980); United States v.
Vertac Chemical Corp., 489 F.Supp. 870 (E.D. Ark. 1980); and
United States v. Midwest Solvent Recovery, Inc., 484 F.Supp.
138 (N.D. Ind. 1980).

12. Although plaintiff contends that the term ‘‘disposal’’
found in section 7003 should include the ‘‘leaking’’ of con-
taminants into the environment, the Court finds this argument
of little significance in determining the parties’ liability under
7003. This would not be the case if the ultimate issue was
whether section 7003 applied to inactive disposal sites under all
circumstances. ~s

13. Federal common law governing hazardous waste disposal
has been preempted by subsequent Congressional legislation,
RCRA and CERCLA. The Court is therefore without recourse
to federal common law in determining the defendants’ liability
under section 7003 or CERCLA. Milwaukee v. Illinois
(Milwaukee II), 451 U.S. 304, 31732 (°°81); Middlesex County
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 22
(1981). Accord Waste Industries, 556 F.Supp. at 1314-16; Out-
board Marine Corp., 556 F.Supp. at 55-56; Stepan Chemical
Co., 544 F.Supp. at 1146-1148; and Price, 523 F.Supp. at 1069.
See generally Common Law Nuisance in Hazardous Waste
Litigatin; Has It Survived Milwaukee II?, 13 E.L.R. 10043

A

—" i

(1983); and The Preemptive Scope of the Comprehensive En-
vironmental Response, Compensation and Liability Act of
1980: Necessity For an Active State Rule, 34 U.Fla.L.Rev. 635
(1982). But see generally Using RCRA’s Imminent Hazard Pro-
vision in Hazardous Waste Emergencies, 9 Ecology L.Q. 599,
313-614 (1981) (‘‘federal common law remedies made
available’’ to fill gaps of section 7003. Jd. at 614).

Neither RCRA, nor CERCLA, require the plaintiff to allege
or show interstate effects in order for this Court to have subject
matter jurisdiction. See United States v. Reilly Tar & Chemical
Corp., 546 F.Sup. 1100, 1107 and 1113 (D. Minn. 1982); United
States v. Price, 523 F.Supp. 1055, 1070 n.3 (D. N.J. 1981),
aff'd, 688 F.2d 204 (3rd Cir. 1982); and United States v.
Solvents Recovery Services of New England, 496 F.Supp. 1127,
1138-39 (D. Conn. 1980).

14. Although the Act grants most of the substantive authority
to the President, he has delegated these and other superfund im-
plementation authority to the EPA, the Coast Guard, and
various other agencies. Exec. Order No. 12316, 46 Fed. Reg.
42,237 (1981).

15. For a more thorough discussion of the general outline and
financing mechanisms of CERCLA, see Wade, 546 F.Supp. at
792-93; Reilly Tar & Chemical Corp., 546 F.Supp. at 1111-12;
and Stepan Chemical Co., 544 F.Supp. at 1142-43. See general-
ly R. M. Hall, Jr., The Problem of Unending Liability for
Hazardous Waste Management, 38 Bus. Law. 593, 600-01
(1983); J. Sachs, Environmental Law & Practice, Practicing
Law Inst. (1982); The Preemptive Scope of the Comprehensive
Environmental Response, Compensation and Liability Act of
1980: Necessity for an Active State Rule, 34 U.Fla.L.Rev. 635,
653 (1982); and Ekhardt, The Unfinished Business of Hazar-
dous Waste Control, 33 Baylor L. Rev. 253 (1981). CERCLA,
although nicknamed ‘‘the Superfund,”’ is not the ultimate tool
in dealing with the problems associated with inactive or aban-

— A-100 —

doned hazardous waste sites as initially intended by its sponsors.
CERCLA is in fact a hastily drawn piece of compromise legisla-
tion, marred by vague terminology and deleted provisions. As
will be noted below, numerous important features were deleted
during the closing hours of the Congressional session. Price,
No. 80-4104, slip op. at 11; State ex rei. Brown v. Georgeoff,
562 F.Supp. 1300, 1311 n.12 (N.D. Ohio 1983); Reilly Tar &
Chemical Corp., 546 F.Supp. at 1111-12; and Stepan Chemical
Co., 544 F.Supp. at 1142 and n.9. See generally Ekhardt, The
Unfinished Business of Hazardous Waste Control, 33 Baylor
L.Rev. 253 (1981). The courts are once again placed in the
undesirable and onerous position of construing inadequately
drawn legislation.

16. [Section 106] authorizes the Administrator to take
emergency actions to protect public health or the en-
vironment whenever he receives evidence that the
release of hazardous waste from an inactive site
presents or may present an imminent and substantial
danger to public health or the environment, or that

there is a substantial threat of such a release.... The
Committee intends this standard to be a flexible
one....

H.R. Rep. No. 1016, 96th Cong., 2d Sess. 27-28, reprinted in
[1980] U.S. Code Cong. & Ad. News at 6130-31. Congress
spoke frequently of section 106(a) and its application in for-
mulating equitable remedies to deal with inactive or abandoned
sites that create imminent and substantial hazards.

17. The only decision narrowly construing section 106(a) is
United States v. Wade, 546 F.Supp. 785 (E.D. Pa. 1982). In
holding that section 106(a) does not apply to inactive sites, the
court stated:

In the absence of any evidence that Congress intended sec-
tion 106 to be used in this way, and in fact of the clear and
carefully detailed legislative provision of another route to

— A-101 —

the same result [sections 104 and 107(a)], I cannot agree
with the government’s contention.

The language of section 106 gives no hint of an intent to
confer liability on past generators. Like section 7003 of
RCRA, and, significantly, unlike section 107, it is written
in the present tense. It authorizes the government to seek
immediate injunctive relief because of ‘an actual or
threatened release cf a hazardous substance from a
facility. ...’ A straightforward reading of this language re-
quires that I conclude that Congress intended section
106(a) to be used in emergency situations where hazardous
waste was currently being discharged or threatened to be
discharged ‘from a facility’ and where such discharge
could be stopped by an injunction....

Id. at 793. Although this Court gave great deference to the
Wade decision on other issues, the Court is of the opinion that
the analysis in the Wade decision concerning section 106(a)’s ap-
plication to inactive sites is inappropriate to Congressional in-
tent. First, application of section 106(a) to inactive sites is not
duplicative of sections 104 and 107(a). Section 106(a) is an.
emergency provision, not a general cleanup provisioni. Con-
gress intended section 106(a) to be used when the normal route
through sections 104 and 107(a) proved to be too time consum-
ing and cumbersome in the face cf an imminent and substantial
endangerment. See infra note 28 and accompanying text. Se-

cond, section 106(a) grants broad flexible equitable powers to
the court; whereas, sections 104 and 107(a) provide specific
statutory remedies for costs incurred. Third, a restrictive com-
parison between section 7003 of RCRA and section 106(a) is
misplaced because section 106(a) was drafted by a Congress
enlightened by the hindsight of the inadequacies of section
7003’s application to inactive sites and the magnitude of pro-
blems caused by these sites. CERCLA was specifically enacted
to address the financial and procedural problems associated
with inactive or abandoned sites. Fourth, in order to give full

— A-102 —

effectiveness to CERCLA’s provisions, section 106(a) must be
allowed to work in tandem with sections 104 and 107(a). But
for an expansive reading of section 106(a), the EPA would face
similar financial problems as faced under section 7003 when
abating an imminent and substantial endangerment. Finally,
various other courts have declined to follow this portion of the
Wade decision on similar grounds. Price, No. 80-4104, slip op.
at 14-19; and Outboard Marine, 556 F.Supp. at 57-58. See also
Reilly Tar & Chemical Corp., 546 F.Supp. at 1113-14.

18. Defendants seek to distinguish the results in Turner
Elkhorn Mining Co. from the case at bar. These arguments are
unpersuasive. As previously noted, Congress explicitly intended
CERCLA to apply retroactively is of little consequence. This
Court fails to discern any concert difference in reimbursement
of costs incurred by the government and compensation to black
lung victims. Finally, there is no indication that strict liability
under CERCLA is triggered only for the release of hazardous
waste designated by the EPA. Section 101(14), 42 U.S.C. §
9601(14).

Promulgation of the hazardous waste listing by the EPA was
not a prerequisite to the institution of this suit. Reilly Tar &
Chemical Co., 546 F.Supp. 1100, 1114-15 (D. Minn. 1982).

19. Section 4(n) of S.1480 read, in pertinent part, as follows:

(n)(1) No person (including the United States, the Fund,
or any State) may recover under the authority of this sec-
tion, nor may any money in the Fund be used under Sec-
tion 6 of this Act for the payment of any claim, for
damages specified under subsection (a)(2)(A), (B), (C),
(D), (G), or (E) (other than for ioss resulting from personal
injury of this section, nor may any money in the Fund be
used under section 6(a)(1)(E) or (F) of this Act, where such
damages and the release of a hazardous substance from
which such damages resulted have occurred wholly before
the enactment of this Act.

— A-103 —

(2) No person (including the United States, the Fund, or
any State) may recover under the authority of this section,
nor may any payment of any claim, for damages specified
under subsection (a)(2)(F) of this section (for loss of in-
come or profits or impairment of earning capacity
resulting from personal injury), where the exposure of the
claimant to a release of a hazardous substance has occur-
red wholly prior to January 1, 1977, and the claimant has
discovered or has knowledge of his injury or disease prior
to such date.

(3) No person (including the United States, the fund, or
any State) may recover under the authority of this section
for damages specified under subsection (a)(2)(F) or this
section or under subsection (a)(2)(E) of this section (for
loss of income or profits or impairment of earning capacity
resulting from personal injury), where the exposure of the
claimant to a release of a hazardous substance has occur-
red wholly prior to January 1, 1977, but the claimant has
not discovered or had knowledge of this injury or disease
until after such date.

* * * *

(4) For the purpose of this subsection, the costs of tem-
porary or permanent relocation of resi ences and provi-
sion of alternative water supplies shall be deemed costs of
removal and not damages specified in subyection (a)(2)(A)
of this section.

20. See supra note 15 and accompanying text.

21. E.g., H.R.Rep. No. 1016, 96th Cong. 2d Sess., reprinted
in [1980] U.S. Code Cong. & Ad. News 6119; and S.Rep. No.
172, 96th Cong., 2d Sess., reprinted in [1980] U.S. Code Cong.
& Ad. News 5019.

22. See Georgeoff, 562 F.Supp. at 1312, citing statements by
EPA representatives, S.Rep.No. 848, 96th Cong., 2d Sess. 98

— A-104 —

(1980), and members of Congress, 126 Cong. Rec. S.15,00 (dai-
ly ed. Nov. 24, 1980)

23. Such was also the intent of Congress in passing CERCLA.
See 126 Cong. Rec. S.14,964 (daily ed. Nov. 24, 1980) (state-
ment of Sen. Randolph, then chairman of the Senate Environ-
ment and Public Works Committee); and 126 Cong. Rec. at
H.11,787 (daily ed. Dec. 3, 1980) (statement of Rep. Florio).
The district court in Price, No. 80-4104, slip op. at 18, held that
CERCLA requires a strict liability standard. See generally
Wade, 546 F.Supp. at 793 n.24; Conservation Chemical:
Generator Liability For Imminent Hazards on the Docket, 13
E.L.R. 10208, 10210 (1983); Note, The Comprehensive En-
vironmenial Response, Compensation and Liability Act of
1980: Is Joint and Several Liability The Answer to Superfund?,
18 New Eng. L.P Ev. 109, 128 (1982); and Superfund: C. onscrip-
ting Industry Support for Environmental Cleanup, 9 Ecology
L.Q. 524, 540-41 (1981).

24. See supra note 15 and accompanying text.

25. See also 126 Cong. Rec. HIl, 787 (daily ed. Dec. 3, 1980)
(statement by Rep. Florio); and 126 Cong. Rec. S.14,967 (daily
ed. Nov. 24, 1980) (statement by Sen. Stafford).

26. For a thorough discussion of the policy arguments favor-
ing joint and several liability, see R. M. Hall, Jr., The Problem
of Unending Liability for Hazardous Waste Management, 38
Bus. Law 593, 603-604 (1983); conservation Chemical:
Generator Liability for Imminent Hazards on the Docket, 13
E.L.R. 10208, 10211-15 (1983); Note, The Comprehensive En-
vironmental Response, Compensation and Liability Act of
1980: Is Joint and Several Liability the Answer to Superfund?,
18 New Eng. L.Rev. 109 (1982); and Note, Allocating the Costs
of Hazardous Waste Disposal, 94 Harv. L.Rev. 584 (1981).

As a subsidiary issue, defendants argue that the action must
be dismissed for failure to join an indispensable party, James

— A-105 —

Denney, owner of the Denney farm site, pursuant to
Fed.R.Civ.P. 19. The Court finds this argument without merit.
Neither RCRA, nor CERCLA, designate the landowner as an
indispensable party. Although the Denney farm site is the sub-
ject matter of this suit, this Court finds that the defendants’ in-
terests were not prejudiced by the non-inclusion of Denney in
this suit. Denney appeared and testified at trial for the plaintiff.
The defendants had equal opportunity to make Denney a party,
but chose not to do so. The Court also concurs with the state-
ment found in Austin v. Unarco Industries, Inc., 705 F.2d 1, 5
(ist Cir. 1983), ‘‘Joint tortfeasors are not considered indispensi-
ble parties under federal law (citations omitted).”’

27. See supra note 6 and accompanying text.

28. The only substantive legislative discussion of ‘‘imminent
and substantial endangerment’’, as noted in United States v.
Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1109-11 (D.
Minn. 1982), is found in the House Committee Report accom-
panying section 1431 of the Safe Water Drinking Act; wherein,
it is stated: *

‘{I}mminence’ 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 sec-
tion when there is an imminent likelihood of the introduc-
tion into drinking water of contaminants that may cause
health damage after a period of latency.

Among those situations in which t. * endangerment may
be regarded as ‘substantial’ are the following:

— A-106 —

(1) a substantial likelihood that contaminants capable of
causing adverse health effects will be ingestea oy con-
sumers if preventive action is not taken;

(2) a substantial statistical probability that disease will
result from the presence of contaminants in drinking
water; or

(3) the threat of substantial or serious harm (such as ex-
posure to carcinogenic agents or other hazardous con-
taminants. . . .)

H.R.Rep. No. 1185, 93rd Cong., 2d Sess. 35-36, reprinted in
[1974] U.S. Code & Cong. Ad. News 6454, 6487-88. This stan-
dard had been analyzed and summarized by various courts in
applying emergency environmental statutes. See United States
v. Hardage, No. 80-1031-W, slip op. at 3-4 (W.D. Olka. Dec. 2,
1980) (RCRA-“‘imminency of a hazard does not depend on the
proximity of the final effect but may be proven by the setting in
motion of a chain of events which could cause serious injury”’
(citation omitted)); Environmental Defense Fund, Inc. v. Lam-
Phier, 12 E.L.R. 20843, 20844 (E.D. Va. 1982)
(CERCLA-‘‘There is no requirement that Protective measures
be limited to actions taken after a crisis has arisen or a
catastrophic disaster has struck,”’ (citation omitted)); United
States v. Vertac Chemical Corp., 489 F.Supp. 870, 876 (E.D.
Ark. 1980) (two factors must be considered in evaluating the re-
quest for relief: the toxicity of small concentrations of the
substance and the likelihood that there will be human or en-
vironmental exposure); Reserve Mining Co. v. EPA, 514 F.2d
492, 529 (8th Cir. 1975) (en banc), cert. denied, 426 U.S. 941
(1976) (endangering the health or welfare of persons includes
potential as well as actual harm); Ethyl Corp. v. EPA, 541 F.2d
1, 13 (D.C. Cir. 1976) (en banc), cert. denied, 426 U.S. 942
(1976) (‘‘endanger means something less than actual harm’’);
and Environmental Defense Fund, Inc. v. Ruckelshaus, 439
F.2d 584, 597 (D.C. Cir. 1971) (‘‘a hazard may be ‘imminent’
even if its impact will not be apparent for many years’’). For a

— A-107 —

thorough discussion of RCRA’s section 7003 standard, ‘*immi-
nent and substantial,’’ see Using RCRA’s Imminent Hazard
Provision in Hazardous Waste Emergencies, 9 Ecology L.Q.
599, 604-07 (1981).

29. An employee of a corporation can be personally liable for
activities over which he had direct control and supervision.
Defeudant Lee, along with defendant Michaels, owned and
operated the NEPACCO plant. Both were actively involved in
the planning and implementation of NEPACCO’s disposal
practices. See Escude Cruz v. Ortho Pharmaceutical Corp., 619
f.2d 902, 907 (Ist Cir. 1980) (employee was the ‘‘guiding spirit’’
or ‘‘central figure’ in the corporate activity); Marks v. Polaroid
Corp., 237 F.2d 428, 435 (Ist Cir. 1956) (closely held corpora-
tion with officers who were both officers and shareholders);
Rohm and Haas Co. v. Dawson Chemical Co., Inc., 557
F.Supp. 739, 818-19 (S.D. Tex. 1983); and Chanel Industries,
Inc. v. Pierre Marche, Inc., 199 F.Supp. 748 (E.D. Mo. 1961).

From the language of the statute either an owner or operator
or both can be held liable. In some circumstances these parties
may be the same or separate and distinct persons.

30. See Waste Industries, 556 F.Supp. at 1316; Georgeoff,
$62 F.Supp. at 1312 and the Congressional statements cited
therein. See also H.R. 1016, supra, at 1, reprinted in [1980]
U.S. Code Cong. & Ad. News at 6119.

31. See supra notes 29-30 and accompanying text.

This Court having found defendant Michaels liable pursuant
to section 107(a)(1) does not deem it necessary to determine his
liability pursuant to section 107(a)(3) as a ‘*person’’ who ar-
ranged for the disposal of hazardous waste at the Denney farm
site. Since Congress has determined that owners and operators
of a facility from which hazardous waste are disposed are to be
strictly liable, subject to only four defenses, the question of
whether Michaels actually arranged for the disposal is moot.

a pa

32. See Burgess v. M/V Tamano, 564 F.2d 964, 993 (Ist Cir.
1977), cert. denied, 435 U.S. 941 (1978); and Commw. of Puer-
to Rico v. SS Zoe Colocotroni, 456 F.Supp. 1327, 1347 (D. P.R.
1978), aff'd, 602 F.2d 12 (1st Cir. 1979), construing 33 U.S.C.
§$ 1321(f)(1) and (2) of FWPCA, respectively, shall be liable to
the United States for ‘‘the actual costs incurred’’, not to require
a showing of reasonableness. See also United States v. Beatty,
Inc., 401 F.Supp. 1040, 1045 (W.D. Ky. 1975).

33. See United States v. Hollywood Marine, Inc., 519
F.Supp. 688, 692 (S.D. Tex. 1981); and United States v. Slade,
Inc., 447 f. Supp. 638, 645 (E.D. Tex. 1978), construing ‘‘the ac-
tual costs incurred’’, 33 U.S.C. § 1321 of FWPCA, to include
all salaries of the agencies’ employees and expenses.

— A-109 —

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

No. 80-5066-CV-S-4

United States of America,
Plaintiff,

VS.

Northeastern Pharmaceutical and
Chemical Company, Inc., et al.,

Defendants.

ORDER FOR FINAL JUDGMENT

This Court entered an order on January 31, 1984 granting
judgment in favor of defendants on Couni I of the amended
complaint. The Court also ordered that upon the determination
of the amounts which plaintiff is entitled to recover, judgment
would be entered in favor of the plaintiff and against defen-
dants on Counts II and III of the amended complaint. In addi-
tion, the Court granted the plaintiff’s motion for declaratory
relief and held that the defendants are jointly and severally
liable for future costs of removal or remedial action incurred by
the plaintiff relative to the Denney farm site that are not incon-
sistent with the national contingency plan. Plaintiff was allow-
ed thirty days from the January 31st order in which to submit an
itemization of the cost incurred by plaintiff after December 10,
1980. Finally, the plaintiff was awar ed prejudgment interest
of 9%, calculated from August 19, 1982. On March 2, 1984, the
plaintiff filed an itemization of costs incurred after December
10, 1980 requesting that a judgment be entered against the
defendants for $229,189.05. Specifically, the plaintiff showed
that $139,814.54 had been incurred after December 10, 1980,
and prior to October i, 1983. The plaintiff requested costs

— A-110 —

which were allegedly incurred by the plaintiff during the fiscal
year 1983 for which documentary support was not available,
nor presented, at the time of trial in the amount of $26,991.75.
Plaintiff requested $44,104.21 for costs incurred for removal or
remedial action incurred by the plaintiff relative to the Denney
farm site from October 2, 1983 to March 2, 1984. Finally, the
plaintiff has requested $18,278.55 in prejudgment interest from
August 19, 1982 at 9%.

The defendant does not object to the government’s itemiza-
tion of costs incurred after December 10, 1980 and prior to Oc-
tober 1, 1983, in the amount of $139,814.54. The defendants
contend that they can only be liable for the amount of damages
proven and documented at trial. Specifically, the plaintiff
would be unable to collect the $26,991.75 claim because there
was no documentation at the time of trial for this Court to con-
sider. In addition, the plaintiff is unable to collect the continu-
ing cost of removal or remedial action, amounting to
$44,104.21, because the defendants have not been given an op-
portunity to prove that these costs are inconsistent with the na-
tional contingency plan. The Court is of the opinion that defen-
dants’ arguments as to these two sets of itemized costs have
merit. Consequently, the plaintiff, at this point, can only
recover the specific amount proven at trial, that being
$139,814.54. Presumably, the 9% interest was calculated on an
amount which would be above the recoverable mount of
damages. Therefore, the Court is unable to allow the prejudg-
ment interest as calculated by the plaintiff to be $18,278.55.

Accordingly, for the above reasons, it is hereby

ORDERED that plaintiff is entitled to recover $139,814.54,
as well as prejudgment interest in the amount of 115,357.39,
calculated at 9% simple interest from August 19, 1982; and it is
further

— A-lll —

ORDERED that the Clerk of Court enter judgment in favor
of plaintiff and against defendants on Counts II and III of the
amended complaint, in the amount of $155,171.93.

Russell G. Clark, Chief Judge
United States District Court

Dated: April 16, 1984

— A-112 —

APPENDIX F

IN' THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

No. 80-5066-CV-S-4

United States of America,
Plaintiff,

VS.

Northeastern Pharmaceutical and
Chemical Company, Inc., et al.,

Defendants.

ORDER

Defendants filed a motion to alter or amend the judgment
entered by this Court on April 16, 1984 finding the defendants
liable to the plaintiff for certain costs incurred by the plaintiff in
connection with its activities at the Denney Farm site. This ac-
tion initially sought a judgment against the Syntex Agribusiness,
Inc. On September 3, 1980, the United States and Syntex
entered into a settlement agreement which resulted in a consent
decree being issued by this Court. The defendants contend that
the judgment entered against them on Apri! 16, 1984 should be
reduced by the sum of $100,000.00, the amount previously
received by plaintiff in settlement of their claim against the
Syntex Agribusiness, Inc. Upon due consideration, the Court
finds that defendants’ motion is without merit and should be
denied.

Defendants cite in support of their position Haley v. Byers
Transporation Company, 394 S.W.2d 412 (Mo. 1965); Binson
v. East Texas Motor Freight Lines, 280 S.W.2d 124 (Mo. 1955);
McEwen v. Kansas City Public Service Company, 19 S.W.2d
557 (Mo. App. 1929). The Court finds that these cases stand for

— A-113 —

the proposition that a plaintiff is entitled to only one recovery
and the amount paid by one codefendant is to be used in reduc-
ing or offsetting the judgment against the other codefendants.
As noted in this Court’s prior orders on June 11, 1981 and
January 31, 1984 [reported at 579 F.Supp. 823, 831 n.2 (W.D.
Mo. 1984)], the relief granted in the consent decree, pursuant to
the settlement agreement between the United States and Syntex,
did not concern the costs sought and recovered in the final judg-
ment against .1e present defendants. The costs incurred and
recovered by uae plaintiff is an amount over and above the
amount received from Syntex pursuant to the consent decree.
The judgment eniered on April 16, 1984 should not be reduced
by the sum of $100,000, since the judgment against the defen-
dants involve continuing and ongoing injury (costs), incurred by
the plaintiff after December 10, 1980. Whether or not Syntex
was actually obligated to enter into such a settlement agreement
pursuant to CERCLA or RCRA is of little consequence to the
actual measure of damages incurred by the plaintiffs and the
amount of judgment against the defendants.

Accordingly, for the above reasons, it is hereby

ORDERED that defendants’ motion to alter or amend the
judgment of this Court entered April 16, 1984 is denied.

Russell G. Clark, Chief Judge
United States District Court

Dated: May 3, 1984

— A-114 —

APPENDIX G

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

No. 80-5066-CV-S-W-4

United States of America,
Plaintiff,

VS.

Northeastern Pharmaceutical and
Chemical Company, Inc., et al.,

Defendants.

NOTICE OF APPEAL

Notice is hereby given that defendants Northeastern Phar-
maceutical and Chemical Company (hereinafter NEPACCO),
Edwin Michaels and John Lee, hereby separately appeal to the
United States Court of Appeals for the Eighth Circuit from the
Memorandum Opinion of January 31, 1984, the Order for Final
Judgment dated April 16, 1984 and the Order denying defen-
dants’ Motion to Alter or Amend the Judgment dated May 3,
1984.

ROBERTS, PERRYMAN &
BOMKAMP, INC.
By: Ted L. Perryman, #28410
1015 Locust Street, Suite 700
St. Louis, Missouri 63101
(314) 421-1850

Attorney for Defendants,
NEPACCO, Michaels and Lee

6/28/84

— A-115 —

APPENDIX H

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

Case No. 80-5066-CV-S-4

United States of America,
Plaintiff,
vs.
Northeastern Pharmaceutical and
Chemical Company, Inc., et al.,
Defendants.

NOTICE OF CROSS-APPEAL

Notice is hereby given that the United States of America,
plaintiff above named, hereby cross-appeals to the United
States Court of Appeals for the Eighth Circuit from the Court’s
Memorandum Opinion entered in this action on January 31,
1984.

DATED this 29th day of June, 1984.

ROBERT G. ULRICH
United States Attorney

By

VERNON A. POSCHEL
Assistant United States Attorney
549 United States Courthouse
811 Grand Avenue

Kansas City, Missouri 64106
(816) 374-2560

— A-116 —

APPENDIX I

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

. Article I, Section 8 of the United ouanes Constitution pro-
ere in relevant part:

The Congress shall have Power...[to] make all Laws.
which shall be necessary and proper for carrying into Ex-
ecution the foregoing Powers, and all other Powers vested

- by this Constitution in the Government of the United
States, or in any Department or Office thereof.

2. Article I, Section 9 of the United States Constitution pro-
vides in relevant part:

No Bili of Attainer or ex post facto Law shall be passed.

3. The Fifth Amendment to the United States Constitution
provides in relevant part:

No person shall. . .be deprived of life, liberty or property,
without due process of law....

4. The Seventh Amendment to the United States Constitu-
tion provides in relevant part:

In Suits at common law. . .the right of trial by jury shall be
preserved... .

5. Section 107(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (Super-
fund) (‘““CERCLA’’), Pub. L. 96-510, 94 Stat. 2781 codified at
42 U.S.C. §9607(a) (1983) provides:

Notwithstanding any other provisions or rule of law,
and subject only to the defenses set forth in subsection (b)
of this section —

(1) the owner and operator of a vessel (otherwise subject to
the jurisdiction of the United States) or a facility,

— A-117 —

(2) any person who at the time of disposal of any hazar-
dous substance owned or operated any facility at which
such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of
hazardous substances owned or possessed by such person,
by any other party or entity, at any facility owned or
operated by another party or entity and containing such
hazardous substances, and

(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment facilities
or sites selected by such person, from which there is a
release, or a threatened release which causes the incurrence -
of response costs, hazardous substance, shall be liable
for—

(A) all costs of removal or remedial action incurred
by the United States Government or a State not in-
consistent with the national contingency plan;

(B) any other necessary costs of response incurred by
any other person consistent with the national con-
tingency plan; and

(C) damages for injury to, destruction of, or loss of
natural resources, including the reasonable costs of
assessing such injury, destruction, or loss resulting
from such a release.

6. Section 7003 of the Resource Conservation and Recovery
Act of 1976 (‘**RCRA’’), as amended in 1980, Pub. L. 96-482,
92 Stat. 2348, codified at 42 U.S.C. §9673 (1980) provided:

Notwithstanding any other provision of this chapter,
upon receipt of evidence that the handling, storage, treat-
ment, transportation or disposal of any solid waste or
hazardous waste is presenting an imminent and substantial

— A-118 —

endangerment to health or the environment, the Ad-
ministrator may bring suit on behalf of the United States in

the appropriate district court to immediately restrain any _
person for contributing to the alleged disposal to stop such
handling, storage, treatment, transportation or disposal! or

to take such other action as may be necessary. The Ad-
ministrator shall provide notice to the affected State of any

such suit.

7. Section 7003 of RCRA, as amended in 1984, Pub. L.
98-616, 98 Stat. 3271, codified at 42 U.S.C. §9607(a) (Supp.
1986) provides:

Notwithstanding any other provision of this chapter,
upon receipt of evidence that the past or present handling,
storage, treatment, transportation or disposal of any solid
waste or hazardous 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 con-
tributed or who is contributing to such handling, storage,
treatment, transportation or disposal to restrain such per-
son from such handling, storage, treatment, transporta-
tion, or disposal, to order such person to take such other
action as may be necessary, or both. A transporter shall
not be deemed to have contributed or to be contributing to
such handling, storage, treatment, or disposal taking place
after such solid waste or hazardous waste has left the
possession or control of such transporter if the transporta-
tion of such waste was under a sole contractual arrange-
ment arising from a published tariff and acceptance for
carriage by common carrier by rail and such transporter
has exercised due care in the past or present handling,
storage, treatment, transportation and disposal of such

— A-119 —

waste. The Administrator shall provide notice to the af-
fected State of any such suit. The Administrator may also,
after notice to the affected State, take other action under
this section including, but not limited to, issuing such
orders as may be necessary to protect public health and the
environment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2331%3A2. Public record. Not legal advice.