United States v. Olin Corporation ( 1997 )

  •                      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,
                      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
         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
         The government brought a civil action in the district court,
    seeking a cleanup order against Olin and reimbursement for response
    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. ----,
          The district court found that contaminants may migrate
    off-site, if a well in OU-1 should leak. United States v. Olin
    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.
          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.
          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
          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
          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
         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
          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.
          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).
          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").
          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).
          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
          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).
          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
    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,
          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.
              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
    (noting that hazardous waste long has been recognized as an
    article of commerce).
          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
          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
    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
    (same), aff'd, 
    96 F.3d 1434
     (3d Cir.1996) (table).
          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
          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
    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,
           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
    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
          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.
          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
          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
         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
         Accordingly, the district court's dismissal order is REVERSED.
    The case is REMANDED for further proceedings consistent with this
          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.