ELR Citation: ELR 20444
No(s). s. 83-547-D, 84-90-D (D.N.H. Mar 15, 1985)

The court holds that the three year statute of limitations in §112(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not apply to CERCLA §107 cost recovery actions, which may be brought at any time. The court favors this construction for five reasons. First, the language of §112(d), read in light of basic rules of grammar and punctuation, requires that the three-year limitation be applied to all types of claims against the Hazardous Substances Response Fund, but to only one type of judicial action, an action for natural resources damages. Second, it preserves the "claim"/"action" and "costs"/"damages" distinctions found throughout CERCLA. Third, every portion of §112(d) is given independent significance by the court's interpretation. Fourth, a survey of CERCLA's legislative history, as well as subsequent legislative efforts to reauthorize CERCLA, support this conclusion. Fifth, the court's construction is consistent with the limited precedent on related CERCLA issues. The court concludes its analysis of §112(d) by ruling that the §107 claim brought by New Hampshire is not barred by any alternative statute of limitations or by the doctrine of laches. Therefore, Congress intended to allow federal and state governments to file §107 actions at any time.

The court also holds that a counterclaim against New Hampshire alleging that the state's failure to properly conduct the cleanup operations contributed to the cleanup costs is purely defensive and is not barred by the Eleventh Amendment of the doctrine of sovereign immunity. However, affirmative counterclaims for indemnification and contribution fall outside the scope of New Hampshire's complaint and are barred.

After granting New Hampshire's motion to consolidate its case with the United States' case with respect to the CERCLA claims, but not for the pendent state claims, the court addresses a demand for a jury trial. The court holds that there is not right to a jury trial in §107 actions, because plaintiffs seek the equitable remedy of restitution of the public funds spent on the cleanup.

Next, the court holds that the president and sole shareholder of a corporate defendant may be individually liable under §107 for arranging disposal of hazardous wastes, even though New Hampshire has failed to allege that the corporate veil be pierced. Finally, the court resolves several discovery disputes.

[A related opinion appears at 14 ELR 20497.]

Counsel for Plaintiffs
Douglas J. Miller, Ass't U.S. Attorney
55 Pleasant St., Concord NH 03301
(603) 225-5588

Elizabeth Yu
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2778

Peter G. Beeson, Ass't Attorney General
Environmental Protection Division
State House Annex, Concord NH 03301
(603) 271-3678

Lynn Peterson
Office of Regional Counsel
Environmental Protection Agency, Kennedy Bldg., Boston MA 02108
(617) 223-0393

Counsel for Defendants
Rodney L. Stark
Stark & Peltonen
67 Central St., Manchester NH 03101
(603) 627-4111

Lynn D. Morse
Shute, Engel & Morse
P.O. Box 278, Exeter NH 03833

Claudia C. Damon
Sheenan, Phinney, Bass & Green
1000 Elm St., Manchester NH 03101
(603) 668-0300