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

Citation: 19 ELR 21471
No. No. 83-3882-Y, 716 F. Supp. 676/30 ERC 1845/(D. Mass., 06/07/1989) Retroactive liability

The court rules that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107(f)(1) allows recovery only for natural resource damages that occured after CERCLA's enactment on December 11, 1980, regardless of when the release occurred, and defendants have the burden of proving what portion of damages are excluded from liability. The court first holds that for releases of hazardous substances that occurred before CERCLA's enactment, CERCLA § 107(f)(1) limits recovery to the increment of natural resource damages that occurred after CERCLA's enactment. "Damages" refers to the monetary quantification of a natural resource injury, not to the injury itself. The damages "occur" when some entity incurs expenses due to the injury. The court next holds that all injuries from the date of enactment of CERCLA are compensable, not only injuries that exceed the baseline set on the date of enactment. Next, the court holds that where damages are not divisible between pre-CERCLA enactment and post-CERCLA enactment components, CERCLA makes the entire damage recoverable. Finally, the court holds that the defendants have the burden of proving which damages are pre-enactment and which are post-enactment. CERCLA's entire scheme is a retroactive one, and a party wishing to come within an exception to that scheme bears the burden of proof. This does not violatedue process, as economic legislation of this type is presumptively constitutional, and CERCLA is not arbitrary or irrational.

[Prior decisions appear at 18 ELR 20543, and 19 ELR 21198, 21206, and 21210.]