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Dedham Water Co. v. Cumberland Farms Dairy, Inc.

Citation: 17 ELR 20223
No. No. 86-1216, 805 F.2d 1074/25 ERC 1153/(1st Cir., 11/14/1986) Rev'd

The court rules 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, and the 1984 amendment to §7002 of the Resource Conservation and Recovery Act (RCRA) that eliminated the 60-day notice requirement for citizen suits against alleged violators applies retroactively. The court first rules that a private party may bring an action under CERCLA §107 to recover its response costs from a responsible party without providing the 60-day notice required by CERCLA §112(a). The court initially rejects the argument that §§107 and 112 are entirely independent from each other, since §112(d) provides a three-year statute of limitations applicable to certain §107 actions. However, while §112(d) refers to all "actions" for damages, §112(a) refers only to all "claims" that can be asserted against the Superfund under §111. Throughout the statute, a "claim" refers to a demand for reimbursement from the Superfund, while an "action" refers to judicial proceedings. Thus, §112(a) does not explicitly refer to private judicial "actions" under §107. While §112(a) applies to all claims that "may" be asserted against the Superfund, this language does not require a private-party filing suit for response costs that also could have been asserted against the Fund to comply with §112(a)'s requirements. The word "may" refers not to the possibility of a claim against the Fund, but to claims which are allowed under §111. The legislative history behind the original §112(a) and from the conference report to the 1986 CERCLA amendments provide further support for this conclusion. The court concludes that its reading of §112(a) serves CERCLA's dual purposes of giving the federal government the tools to respond to the problems of hazardous waste disposal and requiring those responsible for the problem to bear the costs. The court's interpretation preserves the limited resources of the Superfund by removing a procedural obstacle to private-party cost recovery actions and helps ensure that liability will be apportioned among responsible parties.

The court next holds that the 1984 amendment to RCRA's citizen suit provision, which eliminated the requirement that a private party provide an alleged violator of RCRA's hazardous waste management provisions with 60-day notice prior to filing suit under RCRA §7002, applies retroactively to plaintiff's suit. Where Congress has expanded the jurisdiction of the courts in response to a perceived gap in a statutory jurisdictional scheme, the court will apply the law in effect at the time it renders its decision if retroactive application would not result in manifest injustice. The 1984 RCRA amendments filled a gap in RCRA's scheme by allowing private parties, which could immediately commence legal action against the Environmental Protection Agency, to immediately commence actions against the alleged violator. Further, retroactive application would not result in manifest injustice since any reliance by the alleged violator on the nonretroactivity of the 1984 amendments is greatly outweighed by the substantial public interest in effectively responding to the problems of hazardous waste.

[The district court decisions are published at 14 ELR 20838 and 16 ELR 20787.]

Counsel for Appellant
Thomas F. Holt Jr., Cynthia L. Amara
DiCara, Selig, Sawyer & Holt
3 Center Plaza, Boston MA 02108
(617) 523-1800

Counsel for Appellee
Allan Van Gestel
Goodwin, Procter & Hoar
Exchange Place, Boston MA 02109
(617) 570-1000

Counsel for Amicus Curiae
Ellen M. Mahan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1193

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.