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In re In re Acushnet River & New Bedford Harbor: Proceedings re Alleged PCB Pollution

Citation: 19 ELR 21198
No. No. 83-3882-Y, 712 F. Supp. 994/29 ERC 1259/(D. Mass., 02/27/1989) Jury trial

The court holds that defendants are entitled to a jury trial on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) natural resource damages claims brought by the United States and Massachusetts for the polychlorinated biphenyl contamination of New Bedford Harbor. An action for natural resource damages under CERCLA § 107(a)(4)(C) seeks the legal relief of diminution in value and loss of use, and thus must be tried before a jury. That CERCLA does not limit the monetary award for natural resource damages to restoration or replacement costs distinguishes natural resource damage claims from the equitable claim for response costs. The monetary recovery for natural resource damages is not an integral part of the equitable remedy of restitution. The Supreme Court's reasoning in Tull v. United States, 17 ELR 20667, that actions for civil penalties are entitled to a jury trial, supports this conclusion. The court holds that Massachusetts' claims for natural resource damages under two state statutes and for reimbursement of its costs in abating an alleged nuisance all present legal issues that must be tried by a jury as a matter of right. The nuisance abatement costs cannot be characterized as simple equitable restitution, since the legal or equitable nature of the remedies provided by state law are unclear and jury trials are favored in close cases. After surveying the virtues of the jury in our system of justice, the court orders that all factual issues not triable by jury as of right, including claims for response costs, be submitted to an advisory jury.

[Other decisions in this litigation are published at 18 ELR 20543, and 19 ELR 21206 and 21210.]

Counsel for Defendants
Daniel J. Gleason, Mary K. Ryan, Brian T. Kenner
Nutter, McClennan & Fish
One International Pl., Boston MA 02210-2669
(617) 439-2000

Paul B. Gelvani, Roscoe Trimmier Jr.
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

David A. McLaughlin, Michael J. McGlone
McLaughlin & Folan
448 County St., P.O. Box A-2095, New Bedford MA 02741-2095
(508) 992-9800

Counsel for Plaintiffs
Ellen M. Mahan, William D. Brighton
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Lee Breckenridge, Chief; Nancy Preis, Ass't Attorney General
Environmental Protection Division
Department of the Attorney General, One Ashburn Pl., 20th Fl., Boston MA 02108
(617) 727-2200