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United States v. Wade

ELR Citation: 14 ELR 20437
Nos. No. 79-1426, 20 ERC 1849/(E.D. Pa., 03/23/1984) Ruling on pre-NCP costs

The court rules that §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes liability for response costs incurred before promulgation of the National Contingency Plan (NCP), but not prior to enactment of CERCLA. The court rules that CERCLA does not impose liability for response costs incurred before enactment of the statute on December 11, 1980. That Congress barred recovery for natural resources damages from private parties or the Superfund in cases where the damage and release occurred before December 11, 1980, and specified no such limit for response cost recovery actions, is not dispositive. The natural resources limit relates to the time of the injury; at issue is the timing of the response. Nor does §104(c)(3), which gives a state required to provide 10 percent of the cost of CERCLA remedial actions a credit for response expenditures between January 1, 1978, and December 11, 1980, imply a congressional intent to allow recovery of pre-CERCLA response costs in general. Although imposing liability for pre-CERCLA response costs would further the statutory purpose of requiring those who created hazardous wastes to clean them up, there is no indication in the statute or legislative history that Congress intended to extend liability this far. Moreover, allowing liability for pre-CERCLA response costs would eliminate any temporal limitation on liability since the 28 U.S.C. §2415, six-year statute of limitations for statutory claims by the government does not appear applicable to CERCLA actions.

The court next rules that CERCLA does impose liability for response costs incurred before promulgation of the NCP under CERCLA §105. Nothing in the statute requires responses, when undertaken, to be consistent with an existing Plan, and such a requirement would fly in the face of the express requirement that all CERCLA provisions became effective upon enactment unless otherwise specified. The only other court to address the issue held that pre-contingency plan expenditures are recoverable, and the legislative history of the Act indicates that this result is not limited, as defendants suggest, to emergency actions under CERCLA §106. Since plaintiff cannot recover response costs incurred before promulgation of the NCP if they are inconsistent with the Plan, there is no risk that defendants will be required to pay for response actions that are not cost-effective.

[Related decisions are published at 12 ELR 21051, 13 ELR 20815, 14 ELR 20096, 14 ELR 20435, 14 ELR 20436, 14 ELR 20439, 14 ELR 20440, and 14 ELR 20441 — Ed.]

Counsel are listed at 14 ELR 20096.