ELR Citation: ELR 20204
No(s). 83-3882-Y (D. Mass. Oct 12, 1989)

The court holds that to establish liability for natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the government must prove that releases from a particular facility contributed to the natural resource injury. The court first rules in footnote 6 that CERCLA's definition of "release" is to be interpreted to include both the placing of waste containers in the environment and the later leaking of those containers. The court next holds that as part of its prima facie case the government must show that a defendant's releases were a contributing factor to a natural resource injury. Next, the court holds that defendants bear the burden of proving which releases were federally permitted for the §107(j) federally permitted release defense to apply. Finally, the court holds that if the government produces evidence that the injury is indivisible, joint and several liability applies unless a defendant can prove that the injury is divisible. The court finds that the record before it is insufficient to apply this rule to this case, and denies motions for partial summary judgment.

[Related opinions are published at 18 ELR 20543; 19 ELR 21198, 21206, 21210, and 21471; and 20 ELR 20202.]

Counsel for Plaintiffs
Ellen M. Mahan, William D. Brighton
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2000

Lee Breckenridge, Chief; Nancy Preis, Ass't Attorney General
Department of Attorney General
Environmental Protection Division, One Ashburton Pl., 20th Fl., Boston MA 02108
(617) 727-2200

Counsel for Defendants
Daniel J. Gleason, Mary K. Ryan, Brian T. Kenner
Nutter, McClennan & Fish
One International Place, Boston MA 02110-2699
(617) 439-2000

Paul B. Galvani, Roscoe Timmier Jr.
Ropes & Gray
One International Place, Boston MA 02110-2624
(617) 951-7000

David A. McLaughlin, Michael J. McGlone
McLaughlin & Folan
4488 County St., P.O. Box A-2095, New Bedford MA 02741-2095
(508) 992-9800