ELR Citation: ELR 20334
No(s). 88-2080 (1st Cir. Nov 2, 1989)

The court holds that in a private cost recovery action under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107, a release or threatened release must cause the incurrence of response costs, but it is not necessary to prove physical migration of the contaminants. The district court had found that the defendant, owner of a truck garage near a public utility's well field, did not actually release the contaminants discovered in the wells. The court first holds that the truck garage owner is an owner and operator covered by CERCLA §107(a), and the contaminants drained there are hazardous substances. The court next holds that the release or threatened release must cause the incurrence of response costs; no physical migration is necessary. The court points to legislative history deleting causation language from CERCLA before enactment and reviews existing case law holding that only the release or threatened release need cause the incurrence of response costs. Finally, the court holds that the Massachusetts Oil and Hazardous Material Release Prevention and Response Act also requires only that the release or threatened release caused the incurrence of reasonable response costs, and citizen suits under the Federal Water Pollution Control Act and the Resource Conservation and Recovery Act are barred in this case, because the state is diligently prosecuting.

[A motion for rehearing is denied at 20 ELR 20340. The district court opinion appears at 19 ELR 20487. Related opinions appear at 14 ELR 20838, 16 ELR 20787, and 17 ELR 20223.]

Counsel for Plaintiffs-Appellants
Thomas F. Holt Jr.
DiCara, Selig, Sawyer & Holt
Three Center Plaza, Boston MA 02106
(617) 523-1800

Counsel for Defendants-Appellees
Allan Van Gestel
Goodwin, Procter & Hoar
Exchange Pl., Boston MA 02109
(617) 570-1000

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.