ELR Citation: ELR 20970
No(s). Y-85-3249 (D. Md. May 28, 1986)

The court holds, inter alia, that the federal government's cost recovery suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is equitable in nature and not unconstitutionally retroactive. The court first rules that the government need not join all potentially liable parties as defendants in a CERCLA cost recovery suit, observing that named defendants can protect themselves by impleading others. The court next rules that the three-year statute of limitations in §112(d) applies only to claims against the Superfund and natural resources damage actions, noting that a cost recovery suit is equitable in nature and so laches is the only applicable time limitation. The court then rules that laches may not bar an action brought by the United States. The court observes, however, that in limited circumstances estoppel may bar actions by the United States.

The court then notes that the reasonableness and lawfulness of a party's actions are irrelevant in a CERCLA cost recovery suit, because CERCLA imposes strict liability subject only to defenses specified in §107(b). The court further rules that CERCLA is not unconstitutionally retroactive as violative of due process and right to contract.

Next the court holds that the 60-day notice requirement in §112(a) does not apply to the government's cost recovery suits and is not jurisdictional. The court holds that for a cost recovery action to be maintained, the government is not required under §104(a)(1) to consult with potentially responsible parties, but notes that the general requirement concerning consistency with the national contingency plan applies. If particular costs are incurred inconsistently with the national contingency plan, only such particular costs will be unrecoverable. Finally, the court finds that there is no right to a jury trial in this case.

Counsel for Plaintiff
F. Henry Habicht II, Patricia K. Casano
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Breckinridge L. Willcox, U.S. Attorney; Glenda G. Gordon, Ass't U.S. Attorney
8th Fl., U.S. Cthse., 101 W. Lombard St., Baltimore MD 21201
(301) 539-2940

Counsel for Defendants
Alan Hilliard Legum
208 Duke of Gloucester St., P.O. Box 191, Annapolis MD 21404
(301) 263-3001