United States v. Northeastern Pharmaceutical & Chemical Co., Inc., a Dissolved Delaware Corporation, Edwin Michaels and John W. Lee, Ronald Mills and Syntex Agribusiness, Inc. United States of America v. Northeastern Pharmaceutical & Chemical Co., Inc., a Dissolved Delaware Corporation, Edwin Michaels and John W. Lee, Ronald Mills and Syntex Agribusiness, Inc

Northeastern Pharmaceutical & Chemical Co. (NEPACCO), Edwin Michaels and John W. Lee appeal from a final judgment entered in the District Court1 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 Secs. 104, 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Secs. 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 Sec. 7003(a) of the Resource Conservation and Recovery Act of 1976 (RCRA) (also known as the Solid Waste Disposal Act), as amended, 42 U.S.C.A. Sec. 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 incurred before the effective date of CERCLA, December 11, 1980, and (2) finding appellants and Mills were not liable for response costs under RCRA Sec. 7003(a), 42 U.S.C.A. Sec. 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.

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) (NEPACCO ). NEPACCO was incorporated in 1966 under the laws of Delaware; its principal office was located in Stamford, Connecticut. Although NEPACCO'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 manufacturing 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. NEPACCO leased the plant from Hoffman-Taff, Inc.; Syntex Agribusiness, Inc. (Syntex), is the successor to Hoffman-Taff. Michaels and Lee knew that NEPACCO's manufacturing process produced various hazardous and toxic byproducts, including 2,4,5-trichlorophenol (TCP), 2,3,7,8-tetrachlorodibenzo-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 waste 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 (Denney farm site) that had been excavated by Leon Vaughn. Vaughn then filled 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 that 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 took water and 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 groundwater. 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 arranging 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 Sec. 7003, 42 U.S.C. Sec. 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 settlement and consent decree. Pursuant to the terms of the settlement, 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 on the Denney farm. The drums as stored do not present an imminent and substantial endangerment to health or the environment; however, no plan for permanent disposal has been developed, and the site will continue to require testing and monitoring in the future.

In August 1982 the government filed an amended complaint adding counts for relief pursuant to CERCLA Secs. 104, 106, 107, 42 U.S.C. Secs. 9604, 9606, 9607 (counts II and III). CERCLA was enacted after the filing of the initial complaint. In September 1982 the district court granted partial summary judgment 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 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 filed its memorandum opinion in January 1984.

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 Sec. 1004(5), 42 U.S.C. Sec. 6903(5), and CERCLA Sec. 101(14), 42 U.S.C. Sec. 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 likelihood 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 Denney 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.

The district court held that RCRA Sec. 7003(a), 42 U.S.C. Sec. 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. Id. at 834-37; accord United States v. A & F Materials Co., 578 F.Supp. 1249, 1258 (S.D.Ill.1984); United States v. Waste Industries, 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 (3d Cir.1983); United States v. Midwest Solvent Recovery, Inc., 484 F.Supp. 138, 144 (N.D.Ind.1980).

CERCLA Sec. 104, 42 U.S.C. Sec. 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,"2 and to seek recovery of response costs from responsible parties pursuant to CERCLA Sec. 107, 42 U.S.C. Sec. 9607, in order to replenish the Superfund. The EPA can also use CERCLA Sec. 106, 42 U.S.C. Sec. 9606, to seek injunctions to compel responsible parties to clean up hazardous waste sites that constitute an "imminent and substantial endangerment" to health and the environment. In the present case, count II sought injunctive relief pursuant to CERCLA Sec. 106, 42 U.S.C. Sec. 9606, and count III sought recovery of the government's past and future response costs pursuant to CERCLA Secs. 104, 107, 42 U.S.C. Secs. 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. Id. 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 Sec. 107(a)(1), 42 U.S.C. Sec. 9607(a)(1). Id. at 847. With respect to the individual defendants, 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 Sec. 107(a)(4), 42 U.S.C. Sec. 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 Sec. 107(a)(1), 42 U.S.C. Sec. 9607(a)(1), and as a "person who by contract, agreement, or otherwise ... arranged with a transporter for transport for disposal ... of hazardous substances," pursuant to CERCLA Sec. 107(a)(3), 42 U.S.C. Sec. 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 Sec. 107(a)(3), 42 U.S.C. Sec. 9607(a)(3). Id. 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 litigation costs, attorney's fees, future response costs, and prejudgment 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. Id. 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.3

Appellants first argue the district court erred in applying CERCLA retroactively, that is, to impose liability for acts committed before its effective date, December 11, 1980. CERCLA Sec. 302(a), 42 U.S.C. Sec. 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. Appellants 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 Sec. 107, 42 U.S.C. Sec. 9607, or in the legislative history. Appellants further argue that because CERCLA imposes a new kind of liability, retroactive application of CERCLA violates due process and the taking clause. We disagree.

The district court correctly found Congress intended CERCLA to apply retroactively. Id. 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, 103 S.Ct. 407, 413, 74 L.Ed.2d 235 (1982). We hold, however, that CERCLA Sec. 302(a), 42 U.S.C. Sec. 9652(a), is "merely a standard 'effective date' provision that indicates the date when 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 retroactivity, it is manifestly clear that Congress intended CERCLA to have retroactive effect. The language used in the key liability provision, CERCLA Sec. 107, 42 U.S.C. Sec. 9607, refers to actions and conditions in the past tense: "any person who at the time of disposal of any hazardous substances owned or operated," CERCLA Sec. 107(a)(2), 42 U.S.C. Sec. 9607(a)(2), "any person who ... arranged with a transporter for transport for disposal," CERCLA Sec. 107(a)(3), 42 U.S.C. Sec. 9607(a)(3), and "any person who ... accepted any hazardous substances for transport to ... sites selected by such person," CERCLA Sec. 107(a)(4), 42 U.S.C. Sec. 9607(a)(4). See, e.g., United States v. Conservation Chemical Co., 619 F.Supp. 162, 220 (W.D.Mo.1985); United States v. Shell Oil Co., 605 F.Supp. at 1069-73; United States v. South Carolina Recycling & Disposal, Inc., 20 Env't Rep. Cases (BNA) 1753, 1760-62 (D.S.C.1984)4; United States v. A & F Materials Co., 578 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.Ill.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 Sec. 106, 42 U.S.C. Sec. 9606, and authorizes federal, state and local governments and private parties to clean up such sites and then seek recovery of their response costs from responsible parties, CERCLA Secs. 104, 107, 42 U.S.C. Secs. 9604, 9607. In order to be effective, CERCLA 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 in 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." Id. at 22, 1980 U.S. Code Cong. & Ad. News at 6125.

The district court also correctly found that retroactive application 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 hazardous substances in the past. We disagree.

It is by now well established that legislative Acts adjusting 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 violation to establish that the legislature has acted in an arbitrary and irrational way. [L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect 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, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976) (citations omitted). Due process is satisfied "simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose." Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984). "Provided 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...." Id. at 729, 104 S.Ct. at 2718.

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 industry 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' standing 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. Conservation Chemical Co., 619 F.Supp. at 216-17. Instead, the government'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 Old Dogs Be Taught New Tricks?, 12 B.C. Envtl.Aff.L.Rev. 1, 43-46 (1985).

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-CERCLA 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, committee 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 ... incurred' [in CERCLA Sec. 107(a),] 42 U.S.C. Sec. 9607(a), is susceptible to varying interpretations, either all costs incurred regardless of when incurred or all costs incurred from the date of enactment." Id. 579 F.Supp. 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. Secs. 9607(c)(3), (f), 9611(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 House, id. at 843 n. 21, and the only references to authority to recover pre-CERCLA response costs in the Senate, Sec. 4(a)(2) and Sec. 4(n) of S. 1480, were deleted and not enacted. Id. 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 Secs. 104, 107, 42 U.S.C. Secs. 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 environment, 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 program estimated to cost $360 million. Shell argued, among other things, that CERCLA did not authorize recovery of the Army's pre-enactment response costs.

The Shell Oil court disagreed and held CERCLA authorized recovery of pre-enactment response costs. 605 F.Supp at 1079. First, the Shell Oil court agreed with the district court in the present 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] Sec. 107(a) [,42 U.S.C. Sec. 9607(a) ]." Id. at 1073. The Shell Oil court examined the grammatical structure of CERCLA Sec. 107(a), 42 U.S.C. Sec. 9607(a), and concluded that each party's argument cancelled the other out. Id., citing 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] intended prospective operation of the liability provision." 605 F.Supp. at 1073. The government had argued, however, that "all the other verbs in [CERCLA] Sec. 107(a) [, 42 U.S.C. Sec. 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." Id.

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

Because CERCLA Secs. 107(c)(3), 107(f) and 111(d), 42 U.S.C. Secs. 9607(c)(3), (f), 9611(d), contain express time limitations, the absence of any time limitations in CERCLA Sec. 107(a), 42 U.S.C. Sec. 9607(a), arguably supports only prospective liability for response costs. CERCLA Sec. 107(c)(3), 42 U.S.C. Sec. 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 Sec. 111, 42 U.S.C. Sec. 9611, actions. This provision specifies the funding relationship between the federal government and individual states for future maintenance costs and does not address whether the government can recover pre-CERCLA response costs from responsible parties.

CERCLA Sec. 107(a)(4)(A)-(C), 42 U.S.C. Sec. 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 Congressional intent with respect to recovery of pre-enactment response costs. CERCLA Secs. 107(f), 111(d)(1), 42 U.S.C. Secs. 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 Shell Oil court noted the provisions authorizing recovery of response costs by the government, CERCLA Sec. 107(a)(4)(A), 42 U.S.C. Sec. 9607(a)(4)(A), and by any other person, CERCLA Sec. 107(a)(4)(B), 42 U.S.C. Sec. 9607(a)(4)(B), do not contain time limitations and decided "[i]n order to give meaning to these [time limitation] provisions [in CERCLA Secs. 107(f), 111(d)(1), 42 U.S.C. Secs. 9607(f), 9611(d)(1) ], one must assume that liability for other damages--costs of removal or remedial action incurred by the United States or a State (Sec. 107(a)(4)(A)), and other necessary response costs incurred by any other person (Sec. 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 affirmatively 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 Sec. 112(d), 42 U.S.C. Sec. 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 Shell 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 enactment. 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 environment was so imminent that the United States proceeded 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 commenced prior to the enactment of the statute.... Congress could [not] have intended to protect the public fisc by imposing liability on the responsible parties, yet except the sites where response had already commenced because the 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.