ELR Citation: ELR 20580
No(s). CV-F-97-5016 OWW LJO (E.D. Cal. May 25, 2000)

The court holds that the Superfund Recycling Equity Act's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §127 liability exemption for certain recyclers applies to all parties in a state CERCLA enforcement action pending when the liability exemption was enacted. The court first holds that under the analysis required by Landgraf v. USI Film Products, 511 U.S. 244 (1998), the liability exemption applies retrospectively. The express language of CERCLA §127 did not unambiguously state the temporal reach of the exemption, nor did it mention every class of pending cases to which the exemption applies. However, the express language, statutory structure, legislative purpose, and legislative history of the exemption militate in favor of retrospectivity to all pending actions brought by any party, including the state or state agencies, except the United States. Yet, retrospective application of the exemption to pending actions does not result in automatic exemption because any party seeking to avoid liability under CERCLA §127 must prove by a preponderance of the evidence all of the exemption's requirements. The court next holds that under Landgraff, the Superfund Recycling Equity Act is not retroactive in its effect. The state agency challenging application of the exemption to pending cases does not suggest its liability for past conduct is increased or that the statute imposes new duties on it. The state agency argues that its rights are impaired because the exemption has potentially eliminated a cause of action that existed previously and has deprived it of a right to seek recovery against a certain class of parties. However, recyclers who can satisfy the requirements of CERCLA §127 should not have been liable under the pre-CERCLA §127 law, and are not proper sources for recovery. In addition, no new duties are imposed with respect to already completed transactions that underlie the pending action. Thus, there is no manifest injustice in applying CERCLA §127 to all transactions and claims in this case.

[Counsel not available at this printing.]