ELR Citation: ELR 21272
No(s). 87-101- (E.D. Va. Mar 10, 1988)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) statute of limitations does not apply retroactively to response costs incurred prior to its enactment in October 1986, and an individual owner of a hazardous waste site who took no part in the facility's operation is a covered person under CERCLA §107(a). The court first holds that a dissolved Virginia corporation may be sued for acts committed prior to its dissolution, pursuant to Virginia law. The court then holds that an individual owner of a hazardous waste site who took no part in the property's operation is liable under CERCLA §107(a). Although CERCLA §107(a)(1) refers to "owner and operator," §§107(a)(2) and 101(20)(A) use the disjunctive "or." Moreover, the trend in the case law has been to hold that ownership alone of a facility is sufficient to create liability under §107(a)(1). The court holds that CERCLA §112(a) does not apply to government actions for response costs. Section 112(a) by its very terms applies to claims brought under §111(a) and not to actions brought by the government under §§104 and 107 against responsible parties for costs already incurred. Finally, the court rules that the statute of limitations in CERCLA §113(g) enacted in 1986 does not apply to actions involving response costs incurred prior to its enactment. Retroactive application of statutes, particularly where retroactive operation of a statute of limitation would bar government rights, is generally disfavored. Although the federal courts have uniformly held that CERCLA applies retroactively to preenactment acts, retroactive application of §113(g) would thwart Congress' intent to hold responsible parties liable for environmental hazards. The statute itself states only that the 1986 amendments shall take effect upon enactment, and thus Congress must have intended that the general rule against retroactivity would apply. The legislative history behind the 1986 amendments indicates only that Congress intended to bar stale claims, which is the goal of any statute of limitations. A Supreme Court decision holding that courts should apply the law in effect at the time of decision does not control this case, since legislative direction and the policy behind CERCLA support the rejection of retroactive application.

Counsel for Plaintiff
Michael McIntyre
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5508

Joseph F. Schive
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-3068

Allyn Stern
Office of Region Counsel
U.S. Environmental Protection Agency
841 Chestnut St., Philadelphia PA 19107
(215) 597-7906

John F. Kane, Ass't U.S. Attorney
600 Granby St., Rm. 409, Norfolk VA 23510
(804) 441-6331

Counsel for Defendants
Lawrence J. Lipka
133 28th St., Newport News VA 23607
(804) 247-3631

Wayne Lustig, Richard N. Shapiro
Pennbrook One Bldg., 5th Fl., Virginia Beach VA 23462
(804) 499-8971