LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 39
that the “passive movement and migration of hazardous substances by mother nature (no human
action assisting in the movement) is still a ‘release’ for purposes of CERCLA in this case.” 149
The court then relied on Aetna Casualty and Surety Co., Inc. v. Pintlar Corp., 150
and In re
Acushnet River and New Bedford Harbor Proceedings, 151 to conclude that “damages” for
purposes of the “wholly before” limitation are defined as the “monetary quantification of the
injury.” 152
The court held that “damages occurred post-enactment when the federal government
and Tribe began studying the ‘injury’ caused by the mining industry and how to clean up the
injury to natural resources.” 153
Distinguishing the Ninth Circuit’s 2002 en banc decision in
Carson Harbor, 154 the court ruled that the defendants’ releases did not occur “wholly before”
1980 because the continued, post-enactment passive migration of the contaminants constituted a
“release” or “re-release” under the statute. 155
The district court further held that even if all of the
defendants’ releases occurred before 1980, the plaintiffs’ claim would still not be barred by
section 9607(f) because “the damages associated with such releases occurred post-enactment . . .
the statute only excuses liability if the release and the damages both occur pre-enactment.” 156
149 Id.
150 948 F. 2d 1507 (9th Cir. 1991).
151 716 F. Supp. at 681.
152 Coeur d’Alene, 280 F. Supp. 2d at 1114.
153 Id.
154 Carson Harbor Village, Ltd. v. Unocal Corporation, 270 F.3d 863 (9th Cir. 2001)(en banc).
155 Coeur d’Alene, 280 F. Supp. 2d at 1113.
156 Id. at 1114 (emphasis original).
© 37
Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM