ELR Citation: ELR 20360
No(s). 83-4179 (D. Idaho Dec 23, 1987)

The courtholds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(f) requires a specific finding using the words "irreversible" and "irretrievable" to exempt natural resource damage from CERCLA liability, and that CERCLA §107(j) exempts from CERCLA liability natural resource damages resulting from point sources in compliance with National Pollutant Discharge Elimination System (NPDES) permits, but not nonpoint sources. The court first holds that §107(f) requires a specific finding in an environmental impact statement using the words "irreversible" and "irretrievable." These are terms of art under Forest Service regulations, and the language of §107(f) is strict in its requirements before liability is excused. To the extent that this exalts form over substance, the court observes, the remedy lies with Congress to amend CERCLA. The court next holds that plaintiff is barred under §107(j) from seeking damages caused by point sources regulated by an NPDES permit. However, plaintiffs may seek damages caused by nonpoint discharges, since these discharges are not covered by NPDES permits and are thus not "federally permitted releases" under §107(j).

The court also holds that mining wastes are hazardous substances under CERCLA, following the decision in Idaho v. Bunker Hill Co., 16 ELR 20879. Also following that decision, the court holds that Idaho is not prevented from bringing a common-law action for nuisance in this case by the Idaho Environmental Protection and Health Act of 1972. Statutory preemption of common law is not presumed; there is insufficient evidence to determine whether the nuisance action is barred by a four-year statute of limitations; and the nuisance action is not barred because some recent actions by the defendants were in compliance with state regulations.

[Earlier decisions in this case appear at 16 ELR 20407 and 17 ELR 20659, with earlier appellate briefs summarized at ELR PEND. LIT. 65920.]

Counsel for Plaintiff
Clive J. Strong, Deputy Attorney General
Statehouse, Boise ID 83720
(208) 334-2400

Counsel for Defendant
Gary D. Babbitt, Don A. Olowinski
Hawley, Troxel, Ennis & Hawley
P.O. Box 1617, Boise ID 83701
(208) 344-6000