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Ohio ex rel. Brown v. Georgeoff

ELR Citation: 13 ELR 20457
Nos. No. C81-1961, 562 F. Supp. 1300/19 ERC 1113/(N.D. Ohio, 05/03/1983)

The court rules that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes retroactive liability on transporters of hazardous wastes for acts that took place prior to the enactment of CERCLA. Ruling on motions to dismiss, the court initially holds that Ohio's application of §107(a) of CERCLA to two companies that transported hazardous wastes to an Ohio site prior to 1979 requires retroactive application of the statute. The fact that these wastes, transported to the site by defendants prior to enactment of CERCLA, are now allegedly leaking from the site does not constitute postenactment conduct. The court next considers whether CERCLA should be applied retroactively.CERCLA does not qualify as a remedial statute exempt from a presumption against retroactivity. However, the court rules that even though the law may establish a presumption against retroactive application, Congress stated its intent that CERCLA apply retroactively clearly enough to override any such presumption. The statutory language is inconclusive, but the legislative history indicates that Congress intended §107(a) to establish retroactive liability for transporters.The court rejects defendants' argument that the $1.6 billion cleanup fund established by CERCLA and the § 104 authority to recoup monies used for cleanup were the only remedies provided for sites predating the statute.

Finally, the court rules that Ohio did not fail to comply with requirements of §107(a) before bringing suit. Defendants' argument that the removal action whose costs Ohio sought to recover was not consistent with the national contingency plan was mooted in part by promulgation of a revised plan by the Environmental Protection Agency (EPA). The court defers decision on the remaining consistency issues. Nor was Ohio required to enter into a cooperative agreement with EPA under §104 prior to bringing an action under §107 because the two provisions are independent. In addition, Ohio sufficiently pled previously incurred response costs and natural resource damages.

Counsel for Plaintiffs
Martha E. Horvitz, Ass't Attorney General
State Office Tower, 30 E. Broad St., Columbus OH 43215
(614) 466-2766

Counsel for Defendants
Clay Mock
Arter & Hadden
1144 Union Commerce Bldg., Cleveland OH 44115
(216) 696-1144

Dennis M. Kelly
Jones, Day, Reavis & Pogue
1700 Union Commerce Bldg., Cleveland OH 44115
(216) 696-3939

Counsel for Amicus Curiae
Dennis P. Zapka, Ass't U.S. Attorney
1404 E. 9th St., Cleveland OH 44114
(216) 522-7473

David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3483