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Walls v. Waste Resource Corp.

ELR Citation: 16 ELR 20965
Nos. No. CIV. 2-83-418, 640 F. Supp. 79/(E.D. Tenn., 05/08/1986) Decision vacated

The court rules that the 60-day notice requirement of §112(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for recovery of response costs by private parties from the Superfund is also a jurisdictional prerequisite to a §107 action to recover response costs from responsible parties. The court wholly adopts the magistrate's report and vacates its earlier ruling in this case, 16 ELR 20797, in which the court also adopted the magistrate's report in its entirety. The court initially holds that it lacks subject matter jurisdiction because of the plaintiffs' failure to allege compliance with the notice requirement of §112(a). The court specifically rejects a contrary line of cases ruling that the §112(a) notice is only required when a claim is made against the Superfund. The court observes that applying the 60-day notice requirement to all CERCLA actions conserves the limited Superfund monies and operates to avoid litigation where possible. The court accordingly holds that the notice requirement cannot be satisfied by either a "substantial compliance" or "constructive notice" rationale since the notice is more than a mere technical requirement.

[Related cases appear at 16 ELR 20407 and 20787.]

Counsel for Plaintiffs
Allan Kanner, Douglas Lind, Howard J. Sedran, Arnold Levin
Allan Kanner & Associates
1616 Walnut St., Philadelphia PA 19103
(215) 546-6661

Counsel for Defendants
Richard T. Sowell, Wanda Sobieski
Baker, Worthington, Crossley, Stansberry & Woolf
530 Gay St. SW, Knoxville TN 37902
(615) 546-2800