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Colorado v. ASARCO, Inc.

ELR Citation: 16 ELR 20046
Nos. No. 83-C-2383, 616 F. Supp. 822/(D. Colo., 08/29/1985) CERCLA §112(a)

The court holds that the plaintiff's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) response cost and natural resource damage claims are not barred and that the governor of Colorado properly authorized the state attorney general to bring the suit. The court first rules that plaintiff's claims are not barred by its failure to present a claim letter for a sum certain to defendant 60 days prior to commencing the action. Plaintiff filed suit a week after presenting its claim to defendant and asked only for the statutory maximum in damages. The court interprets CERTCLA §112 not to mandate dismissal for failure to comply with the sixty-day requirement. First, the language of §112(a) applies to claims that may be asserted against the Fund under §111. Plaintiff's claim cannot be asserted against the Fund. Second, the 60-day requirement is not jurisdictional. The legislative history supports this conclusion, although language later in §112(a) is not fully in accord. Even if the notice requirements of §112(a) apply to this action, the court rules, failure to present the claim 60 days prior to commencement of suit does not mandate dismissal. The state was unable to fully document its natural resource damage claims since the Department of the Interior did not promulgate damage assessment regulations within the deadlines mandated by Congress. The possibility of settlement was virtually nonexistent under these circumstances. The court then rules that the state need not make an irrevocable election of remedies as between a claim against the Fund or the defendant. The state had presented a claim to the Fund the day after it filed this action. A letter to defendant from an EPA Assistant Administrator supporting the argument that §112(a) requires an irrevocable election does not constitute rulemaking and is merely interpretive. Although the language of §112(a) does suggest that simultaneous claims cannot be brought, the language is not clear. In this case, the state did not have a valid claim against the Fund and defendant made no showing that it was prejudiced in any way as a result of the state's claim. The court also holds that the governor of Colorado properly authorized the attorney general under state law to bring the claims. Lastly, the court holds that sampling and analytical services, personnel and consultant costs, and legal fees are removal costs.

Counsel for Plaintiffs
Howard Kenison, Ass't Attorney General
Department of Law
1525 Sherman St., 3rd Fl., Denver CO 80203
(303) 866-3611

Jacqueline H. Berardini
Jeffrey A. Springer
Suite 2300, 1600 Broadway, Denver CO 80202
(303) 861-2800

Counsel for Defendant
Harry L. Hobson
Holland & Hart
Suite 2900, 555 17th St., P.O. Box 8749, Denver CO 80201
(303) 295-8000