ELR Citation: ELR 20986
No(s). C-1-82-840 (S.D. Ohio Oct 11, 1983)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes strict liability, and where the harm is indivisible, joint and several liability, on waste generators. The court rules that by defining the standard of liability in CERCLA §107 in terms of §311 of the Federal Water Pollution Control Act (FWPCA), Congress intended to impose strict liability, since the legislative history indicates that Congress knew that the courts had interpreted §311 as a strict liability provision.

The court next holds that the statute is ambiguous, but that the legislative history indicates that Congress intended to impose joint and several liability under certain circumstances. By deleting mention of joint and several liability in the final bill. Congress only intended to avoid mandatory application of that standard in all circumstances. Common-law principles are to govern the scope of liability. The court decides that the rule of decision must be a uniform federal one in order to protect uniquely federal interests and carry out the intent of Congress as expressed in the legislative history of CERCLA. Looking to federal statutory law for guidance, the court notes that the standard under the analogous §311 of the FWPCA is joint and several liability. Since blanket adoption of that standard would be inconsistent with CERCLA's legislative history, the court adopts the rule of the Restatement (Second) of Torts that where the injury is indivisible, the liability of two or more tortfeasors is joint and several, with the burden of proving the possibility of apportionment on the defendants. Finding that whether joint and several liability is appropriate in the instant case is a factual issue, the court dismisses defendants' motion for an early determination of the standard of liability.

Counsel for Plaintiff
Barry S. Sandals, Joyce R. Branda, Richard Lazarus
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5245

Christopher K. Barnes, U.S. Attorney; Elizabeth G. Whitaker
220 U.S.P.O. & Cthse., 5th & Walnut Sts., Cincinnati OH 45202
(513) 684-3711

E. Dennis Muchincki, Ass't Attorney General
Environmental Law Section, 30 E. Broad St., 17th Floor, Columbus OH 43215
(614) 466-2766

Counsel for Defendants
Thomas T. Terp
Taft, Stettinius & Hollister
1800 First Nat'l Bank Ctr., Fountain Sq., Cincinnati OH 45202
(513) 381-2838