ELR Citation: ELR 20337
No(s). 83-C-2379 (D. Colo. Mar 26, 1985)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes retroactive liability for government response costs incurred before CERCLA took effect and consolidates this action for response costs and natural resource damages at the Rocky Mountain Arsenal with an action based on the same facts and brought under CERCLA by Colorado against plaintiff and defendant. The court first holds that CERCLA §107 imposes liability for government response costs incurred before the December 11, 1980, effective date of the statute. The statutory language is silent on the issue, but the purpose and scheme of the statue provide clear evidence that Congress intended the liability provision to be retroactive. The legislative history indicates, and many courts have held, that CERCLA imposes retroactive liability for acts committed before enactment of the statute. Several district court decisions limiting such liability to post-CERCLA response costs notwithstanding, liability extends to government response costs incurred before CERCLA's passage. The due process concerns raised by liability for pre-CERCLA actions are not raised by liability for pre-CERCLA costs. Analysis of the mix of present and past verb tenses in §107(a) sheds no light on the issue. The court rules that §107(a)'s requirement that response costs be not inconsistent with the National Contingency Plan (NCP) does not bar recovery of pre-CERCLA costs, since there was an NCP in force under another statute at the time the government began response actions at the Arsenal. Alternatively, the response actions could be tested retrospectively for consistency with the current plan before liability is imposed. The court also rules that the December 11, 1980, effective date set by §302(a) does not address the question of liability for pre-CERCLA costs. Moreover, Congress expressly precluded liability for pre-CERCLA natural resource damages in §§107(f) and 111(d)(1). In that light, its failure to discuss liability for pre-CERCLA response costs indicates an intention to allow recovery. Also, it would be irrational for Congress to exempt pre-CERCLA response costs, given its clear intent to clean up dangerous abandoned toxic waste dumps and to make those responsible for the dumps liable for the costs. The court concludes that the legislative history supports this analysis.

The court next denies defendant's motion to join Colorado as a plaintiff in the action. It rules that satisfaction of the requirements of Federal Rule of Civil Procedure 19(a) does not mandate joinder. The court declines to join Colorado since that might defeat the state's parallel natural resource damage action as a result of CERCLA's December 11, 1980, deadline for such actions. Defendant can be protected from multiple liability to the Army and Colorado by consolidation of the state's parallel action with this one.

The court also denies a motion to join the Department of the Army as a defendant, despite the Army's admission of partial responsibility. The court first rules that as plaintiff in this action, the United States and the Army are the same entity, since it is the Army that has incurred the response costs at the Arsenal and is trustee for its natural resources under CERCLA. For purposes of Rule 19(a), the Army is neither absent from the action, nor an indispensable party for equitable reasons. It is present as plaintiff and equity will be ensured by consolidation of the action with Colorado's natural resource damage case, in which the Army is a defendant. The court declines to rule at this point on defendant's argument that CERCLA §107(g) prohibits naming a potentially liable party under §107(a) as a natural resource trustee.

The court rejects defendant's motion to strike plaintiff's claim for $1.8 billion in damages in light of an Army plan setting cleanup costs at a lower figure. Because the current response estimate is tentative and the $1.8 billion figure is based on an earlier response study, the claim is not so "scandalous" or "immaterial" as to justify a motion to strike under Rule 12(f). Finally, the court orders consolidation of this action with Colorado's natural resource damage action.

Counsel for Plaintiff
Catherine McCabe, Mark Fitzsimmons
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2779

Counsel for Defendant
Edward McGrath
Holme, Roberts & Owen
1700 Broadway, Denver CO 80290
(303) 861-7000