LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 8
Pre-Enactment Releases/Damages
• CERCLA precludes pre-enactment damages
• Recovery precluded where “damages and the release
of a hazardous substance from which such damages
resulted occurred wholly before December 11, 1980”
(9607(f)(1))
• Mixed case law interpretation
• Cessation of operations/emissions precluded liability
(Montana v. ARCO)
• Post-operational “re-releases” due to passive migration
(Couer d’Alene)
• Divisibility of pre- and post-1980 releases
• Monetary quantification of damages
• Is it enough? (In re Acushnet)
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Impermissible Attack on Remedy
• CERCLA Section 9613(h)
• Prevents challenges to the design or extent of response
activities until the response action is complete or one of
several narrow exceptions apply
• Two evolving approaches:
• Whether the action seeks relief directly attacking the
response action or order (Ninth and Eight Circuits)
• Whether the action would have the effect of impeding or
interfering with the goals of the cleanup (Tenth Circuit)
• Exceptions:
• Recovery of response costs or contribution claims
• Enforcement of existing administrative orders
• Collection of administrative penalties
• Claim that response action violates CERCLA
• Action by US to compel a remedial action
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM