United States v. Olin Corporation

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.