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Ninth Ave. Remedial Group v. Fiberbond Corp.

ELR Citation: 27 ELR 20551
Nos. 2:94-CV-331-RL-1, 946 F. Supp. 651/(N.D. Ind., 11/25/1996)

The court holds that §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies retroactively. The court first rejects the argument that the lack of an express mandate from Congress ordering retroactivity should be determinative. Nothing in the U.S. Supreme Court's decision in Landgraf v. USI Film Products, Inc., 511 U.S. 244 (1994), which addresses statutory retroactivity, precludes a finding of congressional intent implied in the text of the statute or manifested in the legislative history as long as such intent is clear. The court also rejects the argument that because it is a remedial statute, CERCLA should be applied retroactively. That the statute was enacted to remedy a hazardous waste problem does not make it remedial for purposes of retroactive application. The court holds that CERCLA's effective date provision is not evidence of congressional intent to apply CERCLA only prospectively, because most case law supports the conclusion that the effective date clause is meaningless in interpreting the intent of Congress with regard to the application of the statute. In addition, the legislative history does not show that the clause was included to replace the retroactivity clause included in the original CERCLA bill. The court also rejects the argument that the use of past tense verbs in §107 supports retroactive application. At best, the use of past tense verbs does not conflict with such application.

The court holds, however, that the implication that arises from the explicitly prospective limitation on the recovery of natural resource damages under §107(f) lends strong support to a finding that Congress intended response cost liability under §107(a) to apply retroactively. In addition, the legislative history of CERCLA reveals the clear intent of Congress to provide for retroactive application of CERCLA liability provisions. Congress was responding to the problem posed by existing inactive waste dump sites, and legislators agreed that responsible parties should pay for the cleanup costs.

Counsel for Plaintiffs
Harold Abrahamson
Abrahamson, Reed & Adley
200 Russell St., Hammond IN 46320
(219) 937-1500

Counsel for Defendants
Jane B. Amdahl
Goodman, Ball, Van Bokkelen, Leonard & Kline
9013 Indianapolis Blvd., Highland IN 46322
(219) 838-9200