Thе Town of Munster, Indiana, (“Munster”) brought a private cost recovery action against Sherwin-Williams Co., Inc. (“Sher-win-Williams”) under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607, seeking contribution for the cost of cleaning up hazardous waste on a tract of land owned by Munster. The parties tried the case to a magistrate who concluded that the equitable defense of laches barred Munster’s claim.
I.
In 1969, the Town of Munster acquired a 140-acre parcel of undeveloped land adjacent to what is now the municipal landfill. Prior to that time, the land was owned by the National Brick Company, and a portion of the land (the “drum site”) had been used for unauthorized dumping by National Brick and others. In February, 1985, the United States Environmental Protection Agency (“EPA”) informed James Mandón, Munster’s Director of Public Works, that drums suspected of containing hazardous materials had been found on the town’s property. The EPA then retained Weston Sper Company (“Weston”) to perform a site assessment and draft a report of their findings. Weston’s tests revealed the presence of numerous hazardous substances that presented a danger to public health and safety. In November, 1985, the EPA delivered to Munster a copy of the Weston report and informed Munster of its obligation, as a Potentially Responsible Party (“PRP”) under CERCLA, to prepare a plan for the removal of the dangerous materials from the site.
For over a yeаr thereafter Munster attempted to negotiate a consent decree that would have allowed it to conduct an independent investigation of the site. The EPA declined to enter into such a decree, and on January 5, 1987, issued an Administrative Order under § 106 of CERCLA, 42 U.S.C. § 9606, requiring Munster to submit both a work plan and a safety plan, along with bid specifications for cleaning up the drum site. Munster then commenced a competitive bidding process and awarded the contract to Maecorp on June 1,1987. Maecorp completed the bulk of the clean-up in September and October, 1987. On July 27, 1988, Munster received final approval from the EPA, indicating that the town had complied fully with the § 106 clean-up Order.
Even before the сlean-up, Munster suspected that Sherwin-Williams may have been involved in some of the dumping. The actual removal of approximately fourteen or fifteen of the drums bearing either the name “Sher-win-Williams” or the name “F. Fischer”, identified as a manager in Sherwin-Williams’ flush color department, confirmed this impression. On March 24, 1989, almost eight months after receiving final approval from the EPA, Munster notified Sherwin-Williams of its potential liability under CERCLA as a generator, transporter, and/or disposer of hazardous waste materials found at the drum site.
A year and a half later, on September 25, 1990, Munster filed suit against Sherwin-Williams seeking contribution for the cleanup costs. 1 By consent of the parties, the action was tried before a magistrаte. On June 23, 1993, after a four-day trial, the magistrate entered judgment for Sherwin-Williams on the ground that the doctrine of laches barred Munster’s suit. Munster appeals from this judgment.
II.
This case presents a straight-forward question of law — whether CERCLA permits the assertion of the equitable defense of laches to bar recovery in a private party cost recovery or сontribution action — which we
Notwithstanding any other provision or rule of law, and subject only to the defenses set foHh in subsection (b) of this section—
sj; ;j; ‡ :}i # ;j;
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transpоrter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, ... [shall be liable for]
* # * * * *
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; ...
42 U.S.C. § 9607(a) (emphasis supplied). Section 107(b) further states:
There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by—
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than an employee or agent of the defendant, ...; or
(4) any combination of the foregoing paragraphs.
42 U.S.C. § 9607(b). Under § 113(f), any party found liable for clean-up costs may seek contribution from other liable or potentially liable parties and “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate_” 42 U.S.C. § 9613(f)(1) (emphasis supplied).
In filing this private party contribution action under both §§ 107 and 113, Munster asserted that CERCLA imposes strict liability on responsible parties, subject only to the short and exclusive list of defenses in § 107(b). Sherwin-Williams raised the equitable doctrine of laches as an affirmative defense. The magistrate noted the split of authority on the availability of equitable defenses in a CERCLA private recovery action, but concluded that the arguments in favor of allowing such defensеs were “more persuasive” than the admittedly “strong” counterarguments. Findings of Fact and Conclusions of Law at 6. We disagree, and therefore join the majority of courts, including the Third, Sixth, and Eighth Circuits, in holding that CERCLA does not permit equitable defenses to § 107 liability, although we do conclude that equitable factors may be considered in the allocation of contribution shares.
See Velsicol Chemical Corp. v. Enenco, Inc.,
In concluding that the district court erred in applying thе doctrine of laches, we recognize that a cost recovery action is equitable
[T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words or by a necessary and inescapable inferenсe, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.
Here the clear and unambiguous language of § 107(a) imposes liability “notwithstanding any other provision or rule of law, and subject
only
to the defenses set forth in subsection (b).” 42 U.S.C. § 9607(a) (emphasis supplied). Subsection (b) then establishes “the universe of defenses to seсtion 107 liability,”
Litton,
This section [107] clarifies and confirms the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the clean-up or cоst that may be greater than its equitable share under the circumstances.... Although the only defenses to liability remain those set forth in Section 107(b), courts are to resolve such [contribution] claims on a case-by-case basis, taking into account relevant equitable considerations.
H.R.Rep. No. 253(1), 99th Cong., 2d Sess. 1, 79-80 (1985),
reprinted in
1986 U.S.Code Cong. & Admin.News 2835, 2861-2862;
see also Smith Land,
Sherwin-Williams characterizes the plain language argument advancеd by Munster and accepted today by this court as “cramped and untenable,” and advances a few theories in support of the magistrate’s decision to consider laches as a defense to liability. None of these theories are persuasive.
Sherwin-Williams first contends that limiting defenses to those enumerated in § 107(b) — thus, by implication, depriving defendants оf the protection of statutes of limitations, accord and satisfaction,
res judicata,
and indemnity and hold harmless agreements — would lead to absurd results that Congress could not have intended.
See
Monica Conyngham, Note,
Robbing the Corporate Grave: CERCLA Liability, Rule 17(b), and Post-Dissolution Capacity to be Sued,
17 B.C.EnvtLAff.L.Rev. 855 (1990) (“Carried to its logical extreme, reading clear intent to supercede all non-statutory dеfenses into CERCLA’s broad language and legislative history leads one to conclude that Congress intended to supercede all of the rules of civil procedure or judicial doctrines of res judicata or accord and satisfaction, whenever they frustrate the imposition of liability under CERCLA.”). We find this “parade of horri-bles” argument unconvincing. As an initial matter, no legal or statutory defenses are before this court as the trial court based its judgment exclusively on the equitable defense of laches. Accordingly, our holding is limited to the simple proposition that CERC-
Sherwin-Williams next constructs an argument in favor of allowing equitable defenses based on its reading of CERCLA’s § 101(32) definition of liability and the Supremе Court’s
Romero-Barcelo
decision. As the trial court noted, § 101(32) states that “ ‘liable’ or ‘liability’ under CERCLA shall be construed to be the standard of liability which obtains under section 1321 of Title 33 [the Federal Water Pollution Control Act (“FWPCA”)].” 42 U.S.C. § 9601(32). In
Romero-Barcelo,
the Court concluded that Congress had not withdrawn the district courts’ traditional equitable discretion in enforcing the FWPCA.
Assuming that equitable defenses may not be employed to bar liability, Sherwin-Williams submits two alternative grounds upon which this court may affirm the decision below. First, Sherwin-Williams asks us to view the findings underlying the trial court’s conclusion that laches applied (unreasonable delay and resulting prejudice) as mitigating factors that relieve SherwinWilliams of any obligation at the apportionment stage. In so doing, Sherwin-Williams invites us to perform a function for which we are ill-suited. At the damages phase of a CERCLA trial, a court may consider many factors which could not properly be considered during the liability phase.
See United States v. Atlas Minerals and Chemicals, Inc.,
Sherwin-Williams also contends that we should affirm because-Munster failed to establish a prima facie case on the issue of liability. Liability is established under CERCLA § 107(a) if:
(1) the site in question is a “facility” as defined in § 101(9);
(2) the defendant is a responsible person under § 107(a);
(3) a release or a threatened release of a hazardous substance has occurred; and
(4) the release or the threatened release has caused the plaintiff to incur response costs.
Kerr-McGee Chemical,
III.
The plain language of § 107 explicitly limits the defenses to liability under CERCLA to those enumerated in the statute, none of which mention or even imply that equitable defenses are available. The magistrate
Notes
. The total clean-up costs incurred by Munster amounted to $230,000.
. At the apportionment stage, § 113(f)(1) authorizes courts to "аllocate response costs among liable parties using such equitable factors as the court determines are appropriate,” thereby affording considerable "discretion to use equitable factors in apportioning damages in order to mitigate the hardships of imposing joint and several liability upon defendants who have only contributed a small amount to a potentially large indivisible harm."
United States v. Stringfellow,
. We pause here to address what may have been a misapprehension on the part of the trial court as to the elements of liability under CERCLA. In paragraph 4 of his Conclusions of Law, the magistrate ruled that Sherwin-Williams had established prejudice arising from Munster’s delay in bringing suit. In so doing, the court also noted that "Munster failed to identify which hazardous substances came from Sherwin-Williams containers or drums.” This statement implies that Sherwin-Williams may escape liability unless Munster can successfully trace specific improperly disposed waste to Sherwin-Williams. The statutory scheme and case law, however, suggest otherwise. As our colleagues on the Fourth Circuit have concluded,
In deleting causation language from section 107(a), we assume as have many other courts, that Congress knew of the synergistic and migratory capacitiеs of leaking chemical waste, and the technological infeasibility of tracing improperly disposed waste to its source. In view of this, we will not frustrate the statute's salutary goals by engrafting a 'proof of ownership' requirement, which in practice would be as onerous as the language Congress saw fit to delete.
United States v. Monsanto Co.,