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Velsicol Chem. Corp. v. Enenco, Inc.

ELR Citation: 24 ELR 20107
Nos. Nos. 92-5579, -5580, 9 F.3d 524/37 ERC 2009/(6th Cir., 11/12/1993)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)(2)'s limitations provision does not apply retroactively to bar a CERCLA §107 cost recovery claim where the claim had accrued but was not filed before the limitations provision was enacted,and that laches is not a defense to the §107 claim. The court first holds that the limitations provision does not apply retroactively to bar a cost recovery claim. The Superfund Amendments and Reauthorization Act (SARA), by which the provision was enacted, is silent on the question of retroactivity, the legislative history does not show clear congressional intent that it be applied retroactively, and district courts have almost unanimously found that the provision must be applied prospectively only. Moreover, even if the limitations provision is regarded as procedural rather than remedial, allowing this distinction to permit retroactive application of the limitations provision would undermine CERCLA's goal of expediting cleanups. Therefore, the owners of the hazardous waste site at issue had, at the very least, three years from the effective date of SARA to file a cost recovery claim against two of the companies that disposed of waste at the site. The court holds that the equitable defense of laches is unavailable in cost recovery actions. Although cost recovery actions are essentially equitable in nature, CERCLA §107(b) enumerates all defenses to such actions. Because the cost recovery claim is neither time barred nor barred by laches, the court reinstates the previously dismissed claim. The court next reinstates the site owner's associated CERCLA §113(f) contribution claim, which had been dismissed on the ground that it could not be maintained without the cost recovery claim. Finally, the court remands the district court's denial of a city's motion to intervene for redetermination in light of the reinstatement of the §107 claim.

Counsel for Plaintiff
James Gentry
Spears, Moore, Rebman & Williams
P.O. Box 1749, Chattanooga TN 37401
(615) 756-7000

Counsel for Defendants
Allen Malone
Apperson, Crump, Duzane & Maxwell
2110 One Commerce Sq., Memphis TN 38103
(901) 525-1711

Before: GUY and BOGGS, Circuit Judges; and BELL, District Judge.*