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Nova Chems., Inc. v. GAF Corp.

ELR Citation: 27 ELR 20530
Nos. No. 1:93-CV-125, 945 F. Supp. 1098/(E.D. Tenn., 11/15/1996)

The court holds that §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies retroactively, and that the application of the statute in an action against the former owner of a latex manufacturing site does not violate the Commerce Clause of the U.S. Constitution. The court first holds that the language and structure of CERCLA reveal that Congress intended the Act to operate retroactively. CERCLA's liability provisions are written in the past tense. In addition, CERCLA distinguishes between natural resource damages and response costs by expressly providing that the natural resource damage provision is prospective. This distinction gives rise to a negative inference that the response-cost provision is both prospective and retrospective. Although the U.S. Supreme Court rejected a similar negative inference argument in Landgraf v. USI Film Products, Inc., 511 U.S. 244 (1994), the facts of Landgraf are distinguishable. The clearest expression, though, of congressional intent to make CERCLA retroactive is revealed in CERCLA's purpose and legislative history. The impetus for CERCLA was the desire to clean up existing hazardous waste sites, and the statute was designed to facilitate the prompt cleanup of those sites by placing the ultimate financial responsibility for cleanup on those responsible for hazardous wastes. Furthermore, CERCLA was intended to fill in the gaps of the Resource Conservation and Recovery Act, which operates prospectively. The court rejects the argument that because Superfund can address preenactment contamination, CERCLA need not be retroactive to be effective. When CERCLA was enacted, Superfund was intended to finance response action where a liable party does not clean up a site, cannot be found, or cannot pay the costs of cleanup and compensation.

The court next holds that CERCLA does not violate the Commerce Clause. In United States v. Lopez, 115 S. Ct. 1624 (1995), the Supreme Court identified three categories of activities that Congress may regulate under its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activities having a substantial relation to interstate commerce. At a minimum, CERCLA passes muster under the second category because it protects groundwater, which the Supreme Court has expressly recognized as an article of commerce. CERCLA also fits within the third category because it regulates economic activity that substantially affects interstate commerce. The release of hazardous wastes and the remediation of hazardous waste sites are clearly economic activities, and the aggregate effect of releasing hazardous waste undeniably impacts interstate commerce. In addition, CERCLA's legislative history provides a rational basis for finding that improper hazardous waste disposal substantially affects interstate commerce.

Counsel for Plaintiffs
Bruce C. Bailey
Chambliss & Bahner
1000 Tallan Bldg.
Two Union Sq., Chattanooga TN 37402
(423) 756-3000

Counsel for Defendants
James W. Gentry Jr.
Spears, Moore, Rebman & Williams
Pioneer Bank Bldg.
801 Broad St., 6th Fl., Chattanooga TN 37402
(423) 756-7000