Walls v. Waste Resource Corp.
Citation: 17 ELR 20954
No. No. 86-5589, 823 F.2d 977/26 ERC 1311/(6th Cir., 07/21/1987) Rev'd
The court holds that the 60-day notice provision in § 112(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not apply to private cost recovery actions under CERCLA § 107(a). The court adopts the reasoning in Dedham Water Co. v. Cumberland Farms Dairy, Inc., 17 ELR 20223. In Dedham, the First Circuit interpreted the first sentence of § 112(a) and determined that the language "all claims which may be asserted against the Fund" does not refer to private actions for recovery of response costs. The Dedham court further determined that the use of the word "may" in the above phrase refers to claims that are allowed to be made against the Fund by virtue of § 111, not to the possibility of a claim against the Fund. The Sixth Circuit finds additional support for its holding in CERCLA's dual purpose, which is to provide the federal government with the authority and resources to respond to problems posed by hazardous waste disposal while at the same time ensuring that those who create hazardous waste sites bear the ultimate financial responsibility for cleaning them up. While notification in Fund cases serves these purposes, application of the 60-day notice provision to § 107(a) private cost recovery actions would only delay such actions and thus potentially limit defendants' liability. Finally, the court also looks to the legislative history of the Superfund Amendments and Reauthorization Act for support.
[The district court decisions are published at 16 ELR 20797 and 20965.]
Counsel for Plaintiffs-Appellants
Allan Kanner & Assoc.
1616 Walnut St., Philadelphia PA 19103
Counsel for Defendants-Appellees
James W. Gentry
Gentry & Boehm
600 Dome Bldg., Chattanooga TN 37402
Before: MERRITT and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.