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Dedham Water Co. v. Cumberland Farms Dairy, Inc.

ELR Citation: 14 ELR 20838
Nos. No. 82-3155-MC, 588 F. Supp. 515/22 ERC 1369/(D. Mass., 05/03/1983) Motion to dismiss denied

The court holds that plaintiff in this groundwater contamination suit has constructively complied with the 60-day notice requirements in the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that CERCLA §107 sets forth a private right of action by which plaintiff may seek to recover its response costs irrespective of its ability to recover against Superfund. Though 60 days had not elapsed between plaintiff's notice to defendant and the institution of this suit, defendant knew of its discharge substantially more than 60 days before institution; additionally, more than 60 days has elapsed between notice and this opinion. Whether plaintiff's response costs are consistent with the national contingency plan is not an issue to be resolved on the pleadings. Defendant's motion to dismiss is denied in all respects.

Counsel for Plaintiff
Thomas F. Holt Jr., Edward I. Selig, Joanne Kadishi
DiCara, Selig & Holt
One Boston Place, Suite 1150, Boston MA 02108
(617) 523-1800

Counsel for Defendant
Allan van Gestel
Goodwin, Proctor & Hoar
28 State St., Boston MA 02109
(617) 523-5700