ELR Citation: ELR 20760
No(s). s. 81-0851, 83-5493 (E.D. Pa. Sep 25, 1990)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies retroactively to responsible parties for preenactment response costs incurred by the city of Philadelphia at its Enterprise Avenue landfill. During 1974 and 1975, transporters of hazardous industrial waste bribed city employees working at the landfill in order to illegally dump the waste there, and the city discovered the illegal dumping in 1979 and cleaned up the waste at its own expense. The city subsequently brought this suit to recover its response costs for remediation efforts, some of which were begun prior to enactment of CERCLA in 1980. The court first holds that Congress intended to impose liability retroactively under CERCLA on responsible parties for response costs incurred prior to enactment of CERCLA. Although CERCLA does not expressly provide for retroactivity, §107's liability scheme is overwhelmingly remedial and retroactive since Congress undeniably intended that parties responsible for any environmental harm bear the costs of their actions. Moreover, CERCLA was designed to promote prompt response action, and Congress could hardly have meant to protect human health, the environment, and the public fisc by excepting sites where response action had already commenced because the situations at those sites were the most imminently threatening. Further evidence that Congress intended retroactive application of CERCLA exists in §107(a)(4)(A), which sets forth three types of liability: recovery of costs consistent with the national contingency plan (NCP) by federal and state governments; recovery of costs consistent with the NCP by any other person; and natural resources damages. Because Congress expressly precluded recovery of natural resources damages if the release and injury occurred wholly before CERCLA's enactment, the fact that Congress did not affirmatively limit the retroactive application of the other two types of liability is evidence that Congress implicitly authorized their retroactive application.

The court holds that the 1973 NCP applies to all response actions taken by the city prior to July 16, 1982, the date the revised NCP was published. The 1973 NCP was promulgated under the Federal Water Pollution Control Act, and it provided the necessary guidance to individuals and to the federal, state, and local governments who undertook cleanups of hazardous waste prior to CERCLA. However, although CERCLA directed the president to revise the 1973 NCP and republish it by June 9, 1981, the revised NCP was not published until 13 months later on July 16, 1982. The court holds that the measure for determining whether the city's response activities during the 13-month gap were consistent with federal standards is the 1973 NCP. Defendants provide no support for their contention that Congress' 180-day republication provision in CERCLA §105(a) reveals that Congress did not intend the 1973 NCP to apply to remedial activities undertaken after June 9, 1981. Rather, by mandating that response actions be consistent with the list of criteria in §105 after publication of the revised NCP, Congress intended that publication of the revised NCP precede its application. Moreover, §302 provides evidence that until superseded by the 1982 NCP, the 1973 NCP remained in effect as if issued under CERCLA. Had the city chosen to wait for the Environmental Protection Agency (EPA) to issue a new NCP before continuing its response actions, it might have waited indefinitely since it took a federal lawsuit and a court order to prompt EPA to act.

The court next holds that between July 16, 1982, and December 10, 1982, the waiting period provided for in §305 to enable Congress to review the revised NCP, the 1982 NCP, which is stricter than the 1973 NCP, is the measure for determining whether the city's response activities during that time were consistent with federal standards. Section 105 specifically refers to publication of the 1982 NCP rather than its effective date, revealing that Congress must have intended that responding parties comply with the revised NCP even while legislators were reviewing and commenting on it. The city was on notice during that period that Congress intended response activities to be consistent with EPA's published version of the NCP, since only a veto of the published plan or a congressional amendment to §305 would alter this result. Moreover, evidence shows that Congress was dissatisfied with the limited coverage of the 1973 NCP.

Turning to the merits, the court holds that the city's response actions, up to July 16, 1982, complied with the 1973 NCP. Response actions that the city should have implemented or considered before excavation pursuant to the 1982 NCP, but did not, do not constitute inconsistencies with the 1982 NCP unless those activities were also mandated by the 1973 NCP. Neither CERCLA nor the 1982 NCP requires a responsible party to cease response activities upon publication of a revised NCP and then backtrack to the first step of its remediation efforts to ensure that activities completed before publication comply with the new NCP. Moreover, in every instance where EPA disagreed with the city's course of action, the city amended its plans in accordance with EPA directives. However, as to the city's consistency with the 1982 NCP after July 16, 1982, the court holds that issues of material fact remain that are relevant to defendants' liability, which makes summary judgment inappropriate and requires further court proceedings.

[Prior decisions in this litigation are published at 12 ELR 20915, 14 ELR 20007, 18 ELR 20133, 19 ELR 21319 and 21322.]

Counsel for Plaintiff
Thomas J. Wamser, Joy J. Bernstein, Deputy City Solicitors
Office of the City Solicitor
Law Dept., 1520 Municipal Services Bldg., Philadelphia PA 19102
(215) 686-1776

Counsel for Defendant
Denis V. Brenan, John F. Stillmun
Morgan, Lewis & Bockius
2000 One Logan Sq., Philadelphia PA 19103-6993
(215) 963-5000