S. Rep. No. 96-848, 96th Cong., 2nd Sess. at 11 (1980); H.R. Rep. 96-1016 (Part I), 96th Cong., 2nd Sess. at 21 reprinted in (1980) U.S. Code Cong. & Ad. News 6119, 6124. Similarly, the language of § 106(a) suggests that liability may arise when a party is shown to be responsible for an ongoing hazard, even though the site may not be in use. See also United States v. Outboard Marine Corp., 556 F. Supp. 54 (D. Ill. 1982).
Defendant also argues that Congress was reluctant to involve the courts in the clean up process and therefore provided a superfund along with the necessary statutory mechanism for implementation. While this may have been one purpose behind the superfund, it does not necessarily preclude the government from also seeking emergency relief from potentially responsible parties under § 106(a). The primary purpose of CERCLA was to "[accelerate the] elimination of unsafe hazardous waste sites." H.R. Rep. No. 1016, supra at 25 reprinted in 1980 U.S. Code Cong. & Ad. News at 6128. In view of the overriding need, it is doubtful that Congress would draft § 106 intending it to apply only prospectively.
It is far more likely that Congress envisioned possible problems with the government funding numerous clean ups and drafted § 106(a) as a viable alternative or concurrent means of achieving the same goal.
If, in fact, Congress did not intend the EPA to pursue remedial action with respect to past sites, other than just by use of the superfund, it would have been forced to allot more money to the fund itself. In other words, if the EPA is forced to use the superfund, and finance the entire clean up operation prior to even initiating an action for those costs against responsible parties, the $1.6 billion allocated to the fund would be depleted almost immediately. See Eckhardt, The Unfinished Business of Hazardous Waste Control, 33 Baylor L. Rev. 263 (1981). Moreover, according to the defendant's interpretation, once the superfund is depleted, the government will have no further recourse against potentially liable parties, since there will be no costs incurred. This result makes no sense both practically and in light of the objectives with which Congress promulgated the legislation.
For the above reasons and in view of the broad and ambiguous language used in § 106(a), this court hereby holds that CERCLA was intended and should apply to past, off-site generators if the circumstances indicate an "imminent and substantial endangerment." Since there is no dispute that Price's landfill requires immediate action, it is not improper for the government to sue the defendants for relief under § 106(a).
Liability Under § 106(a)
The second issue raised by defendant concerns the standard of liability applicable pursuant to § 106(a). The defense argues that even if § 106(a) does apply to the instant case, the proper standard of care should be negligence, not strict liability. Such reasoning assumes that either § 107, which defines liability does not apply to § 106(a), or that § 107 does not set forth a standard of strict liability. We disagree with both arguments and for the following reasons conclude that the defendant generators in the instant case should be held strictly liable for their alleged acts.
In analyzing the standard to be applied under § 106, we must first determine whether the section as drafted contains an independent definition of liability. Of the two courts that have heard actions under § 106(a), one applied the § 107 standards of liability, United States v. Outboard Marine, supra, and the other held that § 106 was substantive and contained its own standard. United States v. Reilly Tar, supra. The court in Reilly Tar quoted the phrase "the public interest and the equities of the case" and concluded that such language implied that Congress intended a standard similar to that used in federal common law nuisance actions. See United States v. Reilly Tar, supra, 546 F. Supp. 1100, 1113, n.2.
The Reilly Tar interpretation is difficult to fathom given the result of Milwaukee v. Illinois, 451 U.S. 304, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981) where the Supreme Court held that federal common law of nuisance had been preempted in the area of water pollution due to the recent outbreak of complex legislation. Milwaukee v. Illinois, supra, 451 U.S. at 317-19. See also United States v. Outboard Marine, supra. A better reading of the statute was articulated by the court in Outboard Marine when it stated that "Congress included this imminent hazard authority [§ 106] in its CERCLA design and it should be given effect. . . . Whatever the source of the substantive law to be applied in a 106(a) action, it is most probable that those who would be liable under Section 107 were intended to be liable in an action under 106(a) for injunctive relief." United States v. Outboard Marine, supra at 57.
This court fully concurs with the result reached in Outboard Marine and in so holding, we include the following additional reasons for applying the standards set forth in § 107. The heading used for § 107, "Liability" denotes an intention to have this section define liability for the entire act. This conclusion is reinforced by the fact that § 107 does not contain any qualifying language. Instead, it appears that Congress desired to use quite broad and unrestrained terminology. In this manner, § 107 sets forth standards of liability and associated defenses. Section 106(a) on the other hand, is quite vague and does not discuss any independent standards of liability with respect to those parties coming within its coverage. As such, it appears that § 106(a) is dependent upon the substantive provisions explaining liability outlined in § 107.
After deducing that the § 107 definition of liability applies in the instant action, we must next determine the proper standard as articulated in that section. The moving party, Roche, concedes that § 107 calls for a standard of strict liability. (See Roche Brief at p. 20.) Another defendant, Union Carbide Corp., however, submitted a brief in support of Roche's motion and questions whether strict liability should apply even under § 107. We note that although the term "strict" was deleted at the last minute, H.R. 7020, 96th Cong. 2d Sess. reprinted in H.R. Rep. No. 1016, part 1 at 17; it still appears that Congress intended to impose a strict liability standard subject only to the affirmative defenses listed in § 107(b). See Note, Generator Liability Under Superfund for Clean-up of Abandoned Hazardous Waste Dumpsites, 130 U. Pa. L. Rev. 1229, 1252-58 (1983). This conclusion is reinforced by virtue of the fact that Congress left the "due care" defense in the statute, a defense which would be rendered meaningless in the absence of strict liability. 42 U.S.C. § 9607(b)(3). Moreover, the strict liability standard fits most closely with the legislative aims of CERCLA which include goals such as cost-spreading and assurance that responsible parties bear their cost of the clean up. H.R. Rep. No. 1016, supra at 17, reprinted in U.S. Code Cong. & Ad. News at 6119; see 68 U. Va. L. Rev. 1157 (1982). The fulfillment of these Congressional goals is more likely to be effectuated if the defendants who allegedly contributed to the environmental mess are now held to a very stringent standard of liability. Though strict liability may impose harsh results on certain defendants, it is the most equitable solution in view of the alternative -- forcing those who bear no responsibility for causing the damage, the taxpayers, to shoulder the full cost of the clean up.
Finally, we turn to the "due care" affirmative defense set forth in § 107(b)(3) which reads as follows:
"an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly with the defendant . . . if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions;"
42 U.S.C. § 9607(b)(3).
Roche contends that the government has not alleged a lack of due care in its complaint and therefore this court must assume that the requirements of § 107(b)(3) have been satisfied. The above-cited section, however, constitutes an affirmative defense. As a result, the burden of proof is on the party raising the defense, in this instance, Roche. In fact, the language of the subsection specifically states that the defendant must establish "by a preponderance of the evidence" that due care was exercised. 42 U.S.C. § 9607(b)(3). Obviously, at this point in the litigation, Roche is not able to prove that it exercised due care, in part because the company has not been presented with the full range of evidence implicating it in the dumping scheme (if such evidence does, in fact, exist). Since Roche has the burden of proving the "due care defense," and has not yet satisfied that burden, its motion for summary judgment must be denied.
In light of the reasons set forth in this opinion this court concludes that Roche can be held liable under § 106(a) of CERCLA, as a potential past, nonnegligent, offsite generator of hazardous waste deposited at Price's Landfill.
Factual Grounds for Summary Judgment
Roche also moves for summary judgment based on the summary of evidence compiled by the government and submitted to the court. The summary was supplied by the government and filed with this court on November 19, 1982, and it outlined all the relevant evidence which the government had against each defendant at that point in time.
Roche contends that the government has taken ample discovery and has still failed to produce any relevant evidence implicating the company. The government, on the other hand, argues that it has conducted only minimal discovery. Moreover, the government notes that Roche, when confronted with discovery requests, has not been forthcoming. Certain problems arose when the government attempted to depose a high level employee of Roche. The government also claims that the company has failed to provide meaningful responses to interrogatories which had been propounded upon them. Roche disputes these allegations. Since the discovery process has been fraught with heretofore, unresolved problems and hence, there has been a limited amount of evidence uncovered, the government requests that this court deny Roche's motion for summary judgment at least until it has had a full opportunity to conduct discovery. Fed. R. Civ. P. 56(f).
The standard for granting summary judgment is a stringent one. Rule 56(c), Fed. R. Civ. P., provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Special Jet Services, Inc. v. Federal Insurance Co., 643 F.2d 977 (3rd Cir. 1981); Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). In deciding whether an issue of material fact does exist, the court is obligated to view all doubt in favor of the nonmoving party. Tomalewski v. State Farm Insurance Co., 494 F.2d 882 (3rd Cir. 1974); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3rd Cir. 1972).
The government, as noted above, cites Rule 56(f) in further support of its position:
"Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
Fed. R. Civ. P. 56(f). Most courts are reluctant to grant summary judgment prior to the termination of discovery. Wright & Miller, 10A Federal Practice and Procedure § 2741 at 546 (West 1983); see, e.g., City of Rome v. United States, 450 F. Supp. 378 (D. D.C. 1978). Moreover, in situations such as the one presented in this action, where a plaintiff must obtain a good deal of information from the opposing party, judgment should be withheld until the discovery process has been completed. National Life Insurance Co. v. Solomon, 529 F.2d 59, 61 (2nd Cir. 1975); Hummel v. Riordon, 56 F. Supp. 983, 987 (D. Ill. 1944).
The evidence presented at this early date in the litigation is sufficient to defeat defendant's motion. The government has produced a total of three loading tickets indicating that waste chemicals generated by Roche ended up at Price's Landfill.
Furthermore, although the deposition testimony of Carl Ling, president of SCP, is far from dispositive, it does demonstrate that SCP (a transporter) disposed of "lab packs" filled with chemicals and that it was hired by Roche during the relevant time period to transport chemical waste. See deposition of Carl Ling, dated August 12, 1983, at p. 32; affidavit submitted by Gregory Halbert, dated January 20, 1983. While the evidence compiled by the government is not overwhelming, it does serve to illustrate outstanding issues of material fact with respect to Roche's alleged involvement in the dumping at Price's Landfill.
There is also no dispute as to the fact that discovery is still ongoing. See Affidavit of Halpert, supra at P 12. The government maintains, however, that Roche has frustrated its attempts, to date, at gathering relevant information. One example cited, with respect to Roche's alleged obstructive tactics, occurred during the government's deposition of John Alexander, a corporate attorney employed by the company. Mr. Alexander was supplied by Roche in response to a deposition request by the government for an employee who had knowledge of the "generation, handling, storage, treatment, transportation, disposal, or arrangement to dispose of . . . hazardous wastes by Roche, . . . at Price's Landfill." See Deposition, John Alexander, dated November 24, 1981. The company contends that it sent Mr. Alexander because it knew of no employee with the requirements set forth in the notice of deposition. Mr. Alexander explained as much at the deposition. The government, however, complains that he came with a prepared written statement, read the statement, and then refused to answer any other questions posed to him. Alexander Deposition, supra at 17-18. While this court is not in a position to resolve the discovery disputes at this time, we do note that these issues must be dealt with prior to granting judgment for either defendant or plaintiff. At this point, regardless of who has been at fault in the past, we direct Roche (and at the appropriate time, all the other defendants in this action) to be forthcoming with respect to the government's discovery attempts.
As indicated in the above discussion, this court is inclined to deny Roche's motion for summary judgment and in turn, grant the government's Rule 56(f) request, allowing it more time to continue the discovery process. With this decision, however, comes a word of caution -- this case has been pending in the courts for over two years. The Third Circuit Court of Appeals has already ordered that the parties proceed as quickly as possible. United States v. Price, supra, 688 F.2d at 215. In spite of that mandate, the case has still not moved as rapidly as it should and minimal discovery has been taken. Furthermore, a number of parties, Roche included, are still defendants in this action despite the fact that the government has not compiled a strong case against them.
Most important, however, is the unavoidable fact that the danger which exists at Price's Landfill is still present and it only gets worse with the passage of time. The ones who are suffering the most are those who have no direct part in this litigation, but probably have the greatest stake in the ultimate resolution: the residents of Atlantic City.
In light of the above-mentioned problems, the court feels compelled to set a strict timetable with respect to the discovery process. This timetable will be set forth in an appropriate order.