ELR Citation: ELR 20452
No(s). CV 90-3122 AAH (JRx) (C.D. Cal. Oct 19, 1993)

The court upholds a Special Master's decisions on several pretrial motions in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 action against an electronics company and several chemical companies for response costs and natural resource damages caused by their release of hazardous substances into the Pacific Ocean through a municipal wastewater system. The court first notes that the electronics company's motion to review the Special Master's order granting plaintiffs' motion to compel amended admissions was timely filed. Although the company had thus far complied with the order, the court holds that it will consider the company's motion at a later date if the Special Master orders further admissions. The court upholds the Special Master's denial of the company's motion in limine to prevent U.S. recovery of damages for injuries to state-owned natural resources within three miles of shore. The motion was procedurally improper, because it did not constitute an evidentiary motion to exclude anticipated prejudicial evidence before the evidence was actually offered. Moreover, discovery in the case is still in progress. The court next upholds the Special Master's dismissal with prejudice of the company's motion for sanctions under Federal Rule of Civil Procedure 11, because Rule 11 sanctions are usually considered only at the conclusion of litigation. The court next upholds the Special Master's denial of the company's motion to compel plaintiffs either to comply with the U.S. Department of the Interior's damage assessment regulations as they relate to information-sharing, or to forego the rebuttable presumption to which a damage assessment performed in compliance with those regulations may be entitled. The court holds that the motion was premature, because the damage assessment had not yet been completed, but notes that plaintiffs should not wait until the eve of trial to declare whether they will avail themselves of the presumption.

The court then upholds denial of the chemical companies' motion to preclude recovery for damages occurring prior to CERCLA's enactment in 1980. Section 107(f)(1) bars recovery only when both the releases that caused the damages and the accrual of damages ended before CERCLA was enacted. Moreover, §107(f)(1) permits retroactive liability for preenactment damages that continue postenactment and are indivisible. Plaintiffs have not alleged that the releases and damages both occurred wholly before 1980. Finally, the court upholds the Special Master's refusal to apply §107(c)(1)'s $50 million damage recovery cap, because the chemical companies' releases over a 50-year period do not constitute a single "incident" within the meaning of CERCLA.

[Related decisions are published at 22 ELR 21327 and 21333.]

Counsel for Plaintiffs
Gerald F. George, Helen Kang
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Karl S. Lytz, Kim McCormick
Latham & Watkins
701 B St., Ste. 2100, San Diego CA 92101
(619) 236-1234