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In re In re Hemingway Transp., Inc.

Citation: 17 ELR 20709
No. Nos. 82-01340-JNG, -01341-JNG, 70 Bankr. 549/25 ERC 1791/(Bankr. D. Mass., 03/02/1987) Sovereign immunity

The court holds that the doctrine of sovereign immunity and the prohibition of preenforcement review bar joinder of the Environmental Protection Agency (EPA) as a party plaintiff in an action by a purchaser of a debtor's property against the bankruptcy trustee for contribution for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the purchaser's motion to join EPA as a necessary party is barred by the doctrine of sovereign immunity. The public policy considerations recognized by the Supreme Court against the abandonment by bankruptcy trustees of property containing hazardous waste do not require the court to disregard the issue of sovereign immunity. Moreover, the purchaser's request for an advisory opinion from EPA on its liability under CERCLA is actually a suit against EPA, and thus the doctrine of sovereign immunity applies. The court holds that the purchaser's motion to join EPA and obtain an adjudication of its liability before EPA brings a cost recovery suit is also barred by CERCLA's prohibition on preenforcement review.

Counsel for Plaintiffs
Louis N. Massery
Cooley, Manion, Moore & Jones
Russia Wharf West, 530 Atlantic Ave., Boston MA 02210
(617) 542-3700

Andrew S. Hogeland, Ass't U.S. Attorney
1107 John W. McCormack Fed'l Bldg., USPO & Cthse., Boston MA 02109
(617) 223-3181

Counsel for Trustee
Judy Mencher
Goodwin, Procter & Hoar
Exchange Place, Boston MA 02109
(617) 570-1000