ELR Citation: ELR 20583
No(s). 83-C-2386 (D. Colo. Nov 17, 1994)

The court holds that amended complaints for recovery of an unspecified amount of response costs do not satisfy the "written demand" requirement for the accrual of prejudgment interest under §107(a)(4)(i) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that a party suing under CERCLA §107(a) may not recover the costs of cleanup activities not directed at hazardous substances. The state of Colorado sought to recover from the United States and another party response costs it incurred at the Rocky Mountain Arsenal, plus prejudgment interest. The court first notes that CERCLA §107(a)(4)(i) requires a written demand for a specified amount. The court holds that neither of the state's amended complaints constituted such a demand, because they did not specify any amount. The court holds that the statute does not require that a party incur response costs before making the written demand and that the requirements of §107(a)(4)(i) are satisfied when a plaintiff makes a written demand for recovery of any dollar amount. The court holds that the state made such a demand in a letter dated February 7, 1989. The court also holds that prejudgment interest for response costs incurred before February 7, 1989, began to accrue on that date, and that prejudgment interest for response costs incurred after February 7, 1989, began to accrue on the date the state incurred those costs. The court next holds that the state is not entitled to recover the costs of its work related to diisopropyl methylphosphonate (DIMP). The parties stipulated that DIMP is a "pollutant or contaminant," but not a "hazardous substance," as CERCLA defines those terms. CERCLA §107(a)(4)(A), when interpreted in accordance with the definitions of "removal" and "remedial action" in §101(23) and (24), dictates that response costs are available only when the response actions are directed at hazardous substances. In addition, the court holds that the costs of the state's enforcement activities under the Colorado Hazardous Waste Management Act (CHWMA) may be recoverable under CERCLA if the activities independently meet the definition of "removal" or "remedial action" under §101(23) and (24), because CERCLA §107(a)(4) does not require removal or remedial action under CERCLA. Section 107(a) begins "[n]otwithstanding any other provision or rule of law," which indicates that recovery may be available under that section despite the applicability of other laws such as the CHWMA. Finally, the court holds that the state's oversight activities may give rise to properly recoverable response costs pursuant to §§101(25) and 107(a), because §101(25) provides that the terms removal and remedial action include enforcement activities related thereto, and the concept of enforcement necessarily encompasses oversight activities.

[A related decision is published at 19 ELR 20815.]

Counsel for Plaintiff
Casey Shpall, Mary R. McCormick, Ass't Attorneys General
Attorney General's Office
Department of Law
1525 Sherman St., Denver CO 80203
(303) 866-3611

Counsel for Defendants
William Pharo, Ass't U.S. Attorney
U.S. Attorney's Office
1200 Federal Office Bldg.
Drawer 3615, Denver CO 80294
(303) 844-3400