United States v. Olin Corporation ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-6645.
USA, acting at request of the Administrator of the United States
Environmental Protection Agency (EPA), Plaintiff-Appellant,
v.
OLIN CORPORATION, Defendant-Appellee.
March 25, 1997.
Appeal from the United States District Court for the Southern
District of Alabama. (No. 95-0526-BH-S), William Brevard Hand,
District Judge.
Before ANDERSON, Circuit Judge, KRAVITCH and HENDERSON, Senior
Circuit Judges.
KRAVITCH, Senior Circuit Judge:
Congress passed the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA") to counteract the
environmental threats associated with hazardous waste disposal. In
this case, the district court dismissed the government's complaint
brought under CERCLA against Olin Corporation ("Olin"). It ruled
that: (1) the Constitution prohibits enforcement of CERCLA against
a party if the environmental effects of that party's conduct remain
limited to its own property; and (2) CERCLA's cleanup liability
provisions apply prospectively only. The government appeals and we
reverse.
I.
Olin has operated a chemical manufacturing facility in
McIntosh, Alabama since 1951. Until 1982, the plant produced
mercury- and chlorine-based commercial chemicals that contaminated
significant segments of Olin's property. This appeal involves one
such portion of the site, called Operable Unit # 1 ("OU-1").
Groundwater and soil pollution at OU-1 make it unfit for future
residential use. Nevertheless, contamination from OU-1 presently
remains localized to Olin's site because the company regulates
groundwater flow beneath its property.1
II.
The government brought a civil action in the district court,
seeking a cleanup order against Olin and reimbursement for response
2
costs, pursuant to sections 106(a) and 107 of CERCLA. After
negotiations, the parties agreed to a consent decree that called
for Olin to pay all costs associated with remediation of OU-1. The
proposal resolved Olin's liability for contamination at OU-1 caused
by disposal activities before and after CERCLA's effective date of
December 11, 1980, see 42 U.S.C. § 9652(a).
When the parties presented the consent decree to the district
court, it sua sponte ordered them to address the impact of the
Supreme Court's decision in United States v. Lopez, --- U.S. ----,
1
The district court found that contaminants may migrate
off-site, if a well in OU-1 should leak. United States v. Olin
Corp., 927 F. Supp. 1502, 1506 (S.D.Ala.1996). The government
also notes that pollutants from Olin's operations have appeared
off-site, albeit within federally-allowed concentration levels.
2
See 42 U.S.C. §§ 9606(a) ("[W]hen the President determines
that there may be an imminent and substantial endangerment to the
public health or welfare or the environment because of an actual
or threatened release of a hazardous substance from a facility,
he may require the Attorney General of the United States to
secure such relief as may be necessary to abate such a danger or
threat and the district court ... shall have jurisdiction to
grant such relief as the public interest and the equities of the
case may require."); 9607(a)(1)(A), (2)(A) (providing that
current and former disposal facility owners and operators are
liable for "all costs of removal or remedial action incurred by
the United States Government ... not inconsistent with the
national contingency plan").
115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (invalidating Gun-Free
School Zones Act under the Commerce Clause), on the legality of
their proposal. Olin complied with that order by answering the
original complaint. It asserted that the Lopez Court's
construction of the Commerce Clause precluded constitutional
application of CERCLA in this case. In addition, Olin contended
that CERCLA was not intended to impose liability for conduct
predating the statute's enactment. The district court agreed with
Olin on both counts, denied the motion to enter the consent decree
and dismissed the government's complaint.
III.
We review de novo the constitutional challenge to CERCLA and
the purely legal question of whether the statute's cleanup
liability provisions apply retroactively. See generally Heuer v.
United States Secretary of State, 20 F.3d 424, 426 (11th Cir.),
cert. denied, --- U.S. ----, 115 S. Ct. 573, 130 L. Ed. 2d 490 (1994).
A.
The district court found that the enforcement of CERCLA
against Olin violated the Commerce Clause as interpreted by the
Supreme Court in Lopez. The Lopez Court held that the Commerce
Clause empowers Congress to regulate: (1) channels of interstate
commerce; (2) instrumentalities of and persons or things in
interstate commerce; and (3) intrastate activities that
substantially affect interstate commerce. See Lopez, --- U.S. at
---- - ----, 115 S. Ct. at 1629-30. This case, like Lopez, concerns
the third category.
Lopez did not alter the constitutional standard for federal
statutes regulating intrastate activities. See id. at ---- - ----,
115 S. Ct. at 1628-30 (documenting consistency of Court's Commerce
Clause jurisprudence since 1942); 1637 (Kennedy, J., concurring)
("Stare decisis operates with great force in counseling us not to
call in question the essential principles now in place respecting
the congressional power to regulate transactions of a commercial
nature."). Simply stated, "the proper test requires an analysis of
whether the regulated activity "substantially affects' interstate
commerce." Id. at ----, 115 S.Ct. at 1630. Congress can maintain
the constitutionality of its statutes under this standard by
including in each a "jurisdictional element which would ensure,
through case-by-case inquiry, that the [regulated activity] in
question affects interstate commerce." Id. at ----, 115 S.Ct. at
1631.3 In addition, Congress, or a committee thereof, can make
legislative findings indicating that a statute regulates activities
with a substantial effect on interstate commerce. See id. If
Congress does so, a court may not override these findings unless
they lack a rational basis. See Cheffer v. Reno, 55 F.3d 1517,
1520-21 (11th Cir.1995) (upholding Freedom of Access to Clinic
Entrances Act because legislative findings were "plausible and
provided rational basis for concluding that the Access Act
regulates activity which "substantially affects' interstate
commerce").
3
This court, for instance, upheld the constitutionality of
the federal statute criminalizing firearm possession by felons,
18 U.S.C. § 922(g), because it requires the government to show,
in each case, that the defendant's weapon either traveled in or
affected commerce. See United States v. McAllister, 77 F.3d 387
(11th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 262, 136
L. Ed. 2d 187 (1996).
When Congress fails to ensure a statute's compliance with the
Commerce Clause, however, courts must determine independently
whether the statute regulates "activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affect[ ] interstate commerce." Lopez, --
- U.S. at ----, 115 S. Ct. at 1631. This determination turns on
whether the statute constitutes "an essential part of a larger
regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated."
Id. A court's focus, thus, cannot be excessively narrow; if the
statute regulates a "class of activities ... and that class is
within the reach of the federal power, the courts have no power "to
excise, as trivial, individual instances' of the class." Perez v.
United States, 402 U.S. 146, 154, 91 S. Ct. 1357, 1361-62, 28
L. Ed. 2d 686 (1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 193,
88 S. Ct. 2017, 2022, 20 L. Ed. 2d 1020 (1968), overruled on other
grounds, Nat'l League of Cities v. Usery, 426 U.S. 833, 96 S. Ct.
2465, 49 L. Ed. 2d 245 (1976), overruled by Garcia v. San Antonio,
469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985)). See also
Lopez, --- U.S. at ----, 115 S. Ct. at 1629 (" "[W]here a general
regulatory statute bears a substantial relation to commerce, the de
minimis character of individual instances arising under that
statute is of no consequence.' " (emphasis omitted) (quoting Wirtz,
392 U.S. at 197 n. 27, 88 S. Ct. at 2024 n. 27)).
The district court's Commerce Clause analysis conflicts with
the foregoing standard in two main respects. First, the district
court indicated that under Lopez a statute must regulate economic
activity directly to satisfy the Commerce Clause. See Olin Corp.,
927 F. Supp. at 1532. Actually, as noted above, Lopez reiterates
that a statute will pass constitutional muster if it regulates an
activity, whatever its nature, "that arise[s] out of or [is]
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce." See Lopez,
--- U.S. at ----, 115 S. Ct. at 1631.4 The district court also
concluded that Lopez requires every statute enacted pursuant to
Congress's Commerce Clause authority to contain a jurisdictional
element. See Olin Corp., 927 F. Supp. at 1532. In fact, the Lopez
Court recognized that a statute without a jurisdictional element
still would stand under the Commerce Clause, if the law satisfied
the substantial effects test. See Lopez, --- U.S. at ---- - ----,
115 S. Ct. at 1632-34.5
Our evaluation of CERCLA under the foregoing framework leads
us to reject Olin's constitutional challenge. Specifically, we
conclude that although Congress did not include in CERCLA either
legislative findings6 or a jurisdictional element, the statute
4
To the extent the Lopez Court considered whether the
Gun-Free School Zones Act regulated "economic" activity, we view
the decision as recognizing that laws aimed directly at economic
activity are most likely to satisfy the substantial effects test.
5
Other courts also have found the district court's
interpretation of Lopez unpersuasive. See, e.g., United States
v. Wall, 92 F.3d 1444, 1449 n. 11 (6th Cir.1996); United States
v. NL Indus., 936 F. Supp. 545, 560 (S.D.Ill.1996).
6
Although CERCLA contains no formal findings regarding
interstate commerce, the government contends Congress previously
made such findings in the Resource Conservation and Recovery Act
of 1976, Pub.L. No. 94-580, 90 Stat. 2795 (codified as part of
the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992). Olin
argues that we should disregard those earlier findings. Our
remains valid as applied in this case because it regulates a class
of activities that substantially affects interstate commerce. The
proper analysis first requires identification of the "class of
activities" involved in the case.7 The class always "could be
defined so narrowly as to cover only those activities that do not
have a substantial impact on interstate commerce." Proyect v.
United States, 101 F.3d 11, 14 (2d Cir.1996) (ruling that class of
activities covered by drug control law was not "cultivation and
personal consumption of marijuana," but rather "manufacture of
controlled substances"). The government contends this suit
involves regulation of releases of hazardous substances generally;
Olin objects to this broad classification. In our view, the
disposal of hazardous waste at the site of production, or
"on-site," constitutes the narrowest, possible class.8
In light of this understanding, we must assess whether onsite
waste disposal substantially affects interstate commerce. Because
the legislative history of CERCLA documents how the unregulated
management of hazardous substances, even strictly within individual
disposition of this case obviates the need to resolve this
dispute. We do note that the Supreme Court at times considers
findings from previous legislation. Compare Wirtz, 392 U.S. at
190 n. 13, 88 S. Ct. at 2020-21 n. 13 (examining findings from
predecessor statute) with Lopez, --- U.S. at ----, 115 S. Ct. at
1632 (declining to review earlier findings where statute
"represents a sharp break with prior enactments").
7
Lopez did not overrule the class of activities approach sub
silentio, as Olin contends. See Proyect v. United States, 101
F.3d 11, 13 (2d Cir.1996).
8
Because the statute passes constitutional muster even when
the class of activities is parsed as narrowly as possible, we
need not determine definitively what class of activities actually
ought to control.
states, significantly impacts interstate commerce, we conclude the
statute can be applied constitutionally under the circumstances of
this case.
When the Senate considered S. 1480, a bill containing cleanup
liability provisions later substantially incorporated into CERCLA,9
its Committee on Environment and Public Works ("the Committee")
took notice of many facts that show a nexus between all forms of
improper waste disposal and interstate commerce. First, the
Committee noted the growth of the chemical industry and the
concomitant costs of handling its waste. See S.Rep. No. 96-848,
96th Cong., 2d Sess. 2 (1980), reprinted in 1 Legislative History
of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 309 (1983) ("Legislative History "). It also
cited a 1980 report by the Office of Technology Assessment which
gauged agricultural losses from chemical contamination in six
states at $283 million. Id. at 310.10 The Committee reported that
the commercial damages resulting from unregulated waste management
were not attributable solely to interstate trafficking in hazardous
materials for disposal, but also arose from accidents associated
9
Compare S. 1480, 96th Cong.2d Sess. § 4(a)(1) (1979),
reprinted in 1 Legislative History of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
168 (1983), with 42 U.S.C. § 9607(a)(4)(A)-(B).
10
In addition, Congress had substantial information that
improper disposal of hazardous waste threatened natural
resource-dependent, interstate industries, such as commercial
fishing. See, e.g., Legislative History at 739 (statement of
Sen. Culver) (noting that "half of the potential fishing in the
Great Lakes [was] lost annually due to contamination-related
curtailments"); 756 (statement of Sen. Leahy) (observing that
contamination from releases in Virginia resulted in "[c]ountless
numbers of commercial fishing ventures be[ing] forced out of
business").
with purely intrastate, on-site disposal activities, such as
improper waste storage in tanks, lagoons and chemical plants. Id.
at 312. Thus, CERCLA reflects Congress's recognition that both
on-site and off-site disposal of hazardous waste threaten
interstate commerce.
Olin notes that the record contains no evidence that its
onsite disposal has caused off-site damage, much less harmed
interstate commerce. This argument is analogous to, and as
unpersuasive as, the drug possessor's plea for an exemption from
federal narcotics laws because his individual actions have no
substantial effect upon interstate commerce. See Proyect, 101 F.3d
at 14. Olin's claim fails because, as the foregoing discussion
documents, the regulation of intrastate, on-site waste disposal
constitutes an appropriate element of Congress's broader scheme to
protect interstate commerce and industries thereof from pollution.
See Lopez, --- U.S. at ----, 115 S. Ct. at 1631.
Olin also objects to enforcement of CERCLA in this case
because it contends its disposal activities are not economic in
nature. As stated above, the Commerce Clause conditions
congressional authority not upon the qualities of the regulated
activity, but rather the degree to which that activity affects
interstate commerce. See supra note 4 and related text. Further,
to the extent a chemical plant can dispose of its waste on-site
free of regulation, it would have a market advantage over chemical
companies that lack on-site disposal options;11 Olin's actions,
11
This fact not only would alter economic conditions in the
chemical industry, but also would lead companies to opt out of
the hazardous waste disposal market. In the aggregate, these
therefore, have an economic character.
For these reasons, we hold that, as applied in this case,
CERCLA constitutes a permissible exercise of Congress's authority
under the Commerce Clause.
B.
The district court also based its dismissal order on its
conclusion that CERCLA's response cost liability scheme applies
only to disposals after the statute's enactment. This ruling not
only conflicts with this court's recent description of CERCLA, but
also runs contrary to all other decisions on point. See Virginia
Properties Inc. v. Home Ins. Co., 74 F.3d 1131, 1132 (11th
Cir.1996) (defining CERCLA as "a statutory scheme that
retroactively imposed strict liability for pollution cleanup");
Olin Corp., 927 F. Supp. at 1507 & n. 25 (recognizing that of the 22
federal courts "which have directly addressed the issue of CERCLA's
retroactivity, none have declined to apply CERCLA on retroactivity
grounds").12 The district court, however, held that
Landgraf v. USI
Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229
(1994), "demolishes the interpretive premises on which prior cases
developments likely would have a substantial effect on interstate
commerce. See Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S. Ct.
82, 90-91, 87 L. Ed. 122 (1942) (ruling that a party's
self-servicing of needs substantially affects broader markets);
see also Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334,
340 n. 3, 112 S. Ct. 2009, 2012-13 n. 3, 119 L. Ed. 2d 121 (1992)
(noting that hazardous waste long has been recognized as an
article of commerce).
12
In the face of this growing body of caselaw, Congress
twice reauthorized CERCLA, once with substantive changes, without
suggesting that the courts had misconstrued the statute regarding
retroactivity. See Omnibus Budget Reconciliation Act of 1990,
Pub.L. No. 101-508, 104 Stat. 1388; Superfund Amendment and
Reauthorization Act of 1986, Pub.L. No. 99-49, 100 Stat. 1613.
had concluded that CERCLA is retroactive," and that this court's
post-Landgraf statement in Virginia Properties constitutes
irrelevant dicta. Olin Corp., 927 F. Supp. at 1508.13
This court has recognized that Landgraf "provides the
analytical framework for determining whether newly enacted
statutory provisions are applicable to pending cases." Hunter v.
United States, 101 F.3d 1565, 1569 (11th Cir.1996) (en banc)
(applying certain sections of the Antiterrorism and Effective Death
Penalty Act of 1996 to habeas corpus petitions pending on the Act's
effective date).14 In Hunter, we observed that "[a] court's first,
and sometimes last, task under Landgraf analysis is "to determine
whether Congress has expressly prescribed the statute's proper
reach.' If Congress has done so, that is the end of the Landgraf
13
Courts that have considered retroactivity challenges to
CERCLA since the district court's decision in this case,
unanimously have repudiated the ruling, and instead, have
continued to give the statute retroactive effect. See, e.g.,
Ninth Avenue Remedial Group v. Fiberbond Corp., 946 F. Supp. 651
(N.D.Ind.1996); Nova Chems., Inc. v. GAF Corp., 945 F. Supp. 1098
(E.D.Tenn.1996); Gould, Inc. v. A & M Battery & Tire Serv., 933
F. Supp. 431 (M.D.Pa.1996); see also State of Nevada v. United
States, 925 F. Supp. 691 (D.Nev.1996) (rejecting identical
retroactivity claim prior to district court's ruling, but not
cited by the district court as contrary authority); United
States v. Alcan Aluminum Corp., 892 F. Supp. 648 (M.D.Pa.1995)
(same), aff'd, 96 F.3d 1434 (3d Cir.1996) (table).
14
This passage from Hunter states only that Landgraf guides
review of "newly enacted" laws. The Landgraf Court did not
indicate whether courts should apply the decision to older
statutes, such as CERCLA. To the extent Landgraf constitutes a
dramatically new rule of statutory construction, as Olin and the
district court suggest, a strong argument can be made that courts
ought not to employ it to upset years of reliance on prior
interpretations of existing laws. Because this complex issue was
not raised by the parties, however, and because we view Landgraf,
not as charting a radical new course, but as reaffirming a
"traditional presumption," Landgraf, 511 U.S. at 280-81, 114
S.Ct. at 1505, we assume it governs our review of CERCLA today.
analysis, and the court simply follows the evident intent of
Congress." Id. (quoting Landgraf, 511 U.S. at 280-81, 114 S.Ct. at
1505). Hunter, however, left open the question of whether
"evidence of legislative intent, other than in an express statutory
command" would satisfy Landgraf 's first prong. Id.15
Because CERCLA contains no explicit statutory command
regarding retroactive application of its cleanup liability regime,
this court must decide what, if any, further inquiry should occur.
Although the Landgraf Court reaffirmed the presumption against
retroactive application of statutes, it emphasized that courts must
effectuate congressional intent regarding retroactivity. See
Landgraf, 511 U.S. at 272-74, 114 S.Ct. at 1501 (stating that
"constitutional impediments to retroactive civil legislation are
now modest"). The Court ruled that its approach simply was
designed to "assure[ ] that Congress itself has affirmatively
considered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the
countervailing benefits." Id. As a result, we conclude that even
absent explicit statutory language mandating retroactivity, laws
may be applied retroactively if courts are able to discern "clear
congressional intent favoring such a result." Id. at 280, 114
15
Other circuits have yet to develop a consistent approach
to this issue. See, e.g., Reyes-Hernandez v. Immigration and
Naturalization Service, 89 F.3d 490 (7th Cir.1996) (employing
phrases "clear statement" and "clear intent" interchangeably);
Conservation Law Found., Inc. v. Busey, 79 F.3d 1250 (1st
Cir.1996) (considering legislative history in determining that
Congress intended statute to apply retroactively).
S.Ct. at 1505 (emphasis added).16 Accordingly, we must review the
language, structure and purpose of the statute, as well as its
legislative history, to determine whether Congress made clear its
intent to apply CERCLA's remediation liability scheme to conduct
pre-dating the statute's enactment.
We examine first CERCLA's language. As noted above, the
statute contains no explicit statement regarding retroactive
application of its cleanup liability provisions. Olin mistakenly
contends that CERCLA's text therefore offers no insight into
Congress's intent on this subject. CERCLA imposes liability for
response costs upon "owners and operators" of "any site or area
where a hazardous substance has been deposited...." 42 U.S.C. §§
9601(9)(B), 9607(a)(1). Its reach also extends to "any person who
at the time of disposal of any hazardous substance owned or
operated " such a facility. 42 U.S.C. § 9607(a)(2) (emphasis
added). Congress thus targeted both current and former owners and
operators of contaminated sites. By imposing liability upon former
owners and operators, Congress manifested a clear intent to reach
conduct preceding CERCLA's enactment.
Olin contends that by including this language Congress sought
to reach only "future former owners and operators," i.e. persons
who would become former owners and operators after December 11,
16
Three justices objected to Landgraf because the majority
adopted a "clear intent" standard, rather than a "clear
statement" requirement. See Landgraf, 511 U.S. at 286, 114 S.Ct.
at 1522 (Scalia, J. concurring in the judgment) (criticizing
majority for considering not only "the text of the law in
question, but [also statements by] individual legislators who
participated in the enactment of the law, and even legislators in
an earlier Congress which tried and failed to enact a similar
law").
1980, CERCLA's effective date. It has pointed to nothing in the
statute or its legislative history which supports this strained
view. In fact, language elsewhere in CERCLA confirms that Congress
intended that persons who were former owners and operators as of
December 11, 1980, would bear the costs of cleaning up sites they
formerly controlled. For example, section 103 provides that:
Within one hundred and eighty days after December 11, 1980,
any person who owns or operates or who at the time of disposal
owned or operated ... a facility at which hazardous substances
... are or have been stored, treated, or disposed of shall ...
notify the Administrator of the Environmental Protection
Agency of the existence of such facility, specifying the
amount and type of any hazardous substance to be found there,
and any known, suspected, or likely releases of such
substances from such facility.
42 U.S.C. § 9603(c)(emphasis added).
Read reasonably, the foregoing subsection addresses conduct
that occurred before CERCLA's effective date. It expressly
mandates that persons who were former owners and operators as of
December 11, 1980, make the required notification regarding their
pre-enactment conduct within six months, or forfeit "any defenses
to liability set out in section [107] of this title...." Id. If,
as Olin asserts, these former owners and operators faced no
liability under section 107, section 103 makes virtually no sense.
We conclude the language of section 103 confirms that Congress
believed its imposition of liability for cleanup upon former owners
and operators in section 107(a) covered persons who were former
owners and operators on December 11, 1980, as well as owners and
operators who sold their interests after that date.17
17
Congress's decision to include an express limitation on
retroactivity in the natural resource damage provision, but not
in the adjacent response cost subsection further shows its intent
An analysis of CERCLA's purpose, as evinced by the statute's
structure and legislative history, also supports the view that
Congress intended the statute to impose retroactive liability for
cleanup. Olin acknowledges that CERCLA was designed to deal with
contamination that preceded the statute's effective date of
December 11, 1980. See Legislative History at 308-19 (Committee
Report) (discussing concern for pre-enactment contamination,
including inactive sites). It insists, however, that Congress
intended for taxpayers in both industry and the general public to
bear the response costs associated with these earlier disposal
problems. This argument ignores the fact that "[a]n essential
purpose of CERCLA is to place the ultimate responsibility for the
clean up of hazardous waste on "those responsible for problems
caused by the disposal of chemical poison.' " Redwing Carriers,
Inc. v. Saraland Apts., 94 F.3d 1489, 1501 (11th Cir.1996)
(internal citations omitted).18 Congress's twin goals of cleaning
to impose retroactive liability for remediation. Although the
Landgraf Court declined to place substantial weight on negative
inferences drawn from "comparatively minor and narrow provisions
in a long and complex statute," Landgraf, 511 U.S. at 257-59, 114
S.Ct. at 1493, it "did not preclude all future use of a negative
inference analysis in support of retroactive intent." Nevada,
925 F. Supp. at 693. "Unlike the prospective provisions in the
1991 Civil Rights Act discussed by the Landgraf Court which were
not connected to the specific provision that the plaintiff wanted
to apply retroactively, liability for response costs, liability
for natural resource damages, and the prospective limitation for
natural resource damages are all part of the same section in
CERCLA." Ninth Avenue, 946 F. Supp. at 659.
18
CERCLA authorizes the government to bear response costs
only "where a liable party does not clean up, cannot be found, or
cannot pay the costs of cleanup...." Legislative History at 320
(Committee Report). The statute's structure, which lists the
liability provisions ahead of the government-funding sections,
confirms these priorities. See 42 U.S.C. §§ 9607, 9611.
up pollution that occurred prior to December 11, 1980, and of
assigning responsibility to culpable parties can be achieved only
through retroactive application of CERCLA's response cost liability
provisions; this fact provides additional evidence of clear
congressional intent favoring retroactivity.19
Further review of CERCLA's legislative history confirms that
Congress intended to impose retroactive liability for cleanup. The
chief predecessor bill to CERCLA, S. 1480, contained no express
statement regarding retroactivity. "Nonetheless, all those
commenting on [it and the parallel House bill] expressed the belief
that the bills would apply retroactively to those responsible for
the releases in existing waste sites." Ninth Avenue, 946 F. Supp.
at 662. See Legislative History at 344 (Committee Report) (noting
that S. 1480 contained a subsection limiting "how claims for
certain damages occurring before the date of enactment will be
handled," but observing that "[c]osts of removal (cleanup and
containment) are not affected by this provision"); 405 (statement
of Administrator Costle) ("The legislation proposed would establish
liability for costs expended by the government to clean up past
disposal practices that today are threatening public health and the
environment, and it does so without reference to prior
standards.").
19
As Olin points out, the Supreme Court has held that the
clear intent standard requires more than a recognition that
"retroactive application of a new statute would vindicate its
purpose more fully." Landgraf, 511 U.S. at 283-85, 114 S.Ct. at
1507-08. In this case, however, retroactive enforcement of
CERCLA does more than merely allow a "fuller vindication" of the
statute's purposes; it prevents frustration of the statute's
purposes.
Olin insists we should disregard this extensive legislative
history because Congress passed a compromise bill. This argument
fails because the cleanup liability provisions from S. 1480 were
incorporated into CERCLA. See supra note 9 and related text.
Moreover, careful scrutiny of the legislative record leading up to
CERCLA's passage reveals that the compromise never turned upon the
statute's imposition of retroactive liability for cleanup, but
rather upon the redaction of the prior bill's provisions on joint
and several liability and personal injury. See, e.g., Legislative
History at 681-91 (statement of Sen. Randolph); 691-96 (statement
of Sen. Stafford).20
For all these reasons, we find clear congressional intent
favoring retroactive application of CERCLA's cleanup liability
provisions.
IV.
Accordingly, the district court's dismissal order is REVERSED.
The case is REMANDED for further proceedings consistent with this
20
Olin asserts that S. 1480 came out of the Committee "over
strong opposition by three Republicans: Minority Leader Howard
Baker and Senators Domenici and Bentsen. Their concerns with the
liability provisions of S. 1480 centered on its imposition of
retroactive liability." Appellee's Br. at 24. Olin reiterates
that these three Senators, one of whom, Bentsen, was a Democrat,
not a Republican, "opposed" S. 1480, and observes that "[i]t is
highly doubtful that all three of the S. 1480 dissenters would
have climbed on board if the retroactivity that troubled them had
not been either removed or deferred." Id. at 26 (emphasis
added). These representations by Olin contain what can be
described, most charitably, as misstatements of the record. The
cited Senators expressly "did not oppose reporting out S. 1480,"
and offered "additional," not "dissenting" views. Legislative
History at 426 (Additional Views of Senators Domenici, Bentsen
and Baker). Moreover, read in context, their statement appended
to the Committee Report does not focus on retroactive liability
for cleanup, but rather the provisions regarding strict, joint
and several liability and personal injury. See id. at 426-29.
opinion.