805 F.2d 1074 (1st Cir. 1986), 86-1216, Dedham Water Co. v. Cumberland Farms Dairy, Inc.

Docket Nº:86-1216.
Citation:805 F.2d 1074
Party Name:DEDHAM WATER COMPANY, Plaintiff, Appellant, v. CUMBERLAND FARMS DAIRY, INC., et al., Defendants, Appellees.
Case Date:November 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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805 F.2d 1074 (1st Cir. 1986)

DEDHAM WATER COMPANY, Plaintiff, Appellant,


CUMBERLAND FARMS DAIRY, INC., et al., Defendants, Appellees.

No. 86-1216.

United States Court of Appeals, First Circuit

November 14, 1986

Heard Sept. 10, 1986.

Thomas F. Holt, Jr., Boston, Mass., with whom Cynthia L. Amara, DiCara, Selig, Sawyer & Holt, Boston, Mass., John R. Cope and Bracewell & Patterson, Houston, Tex., were on brief for appellant.

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Ellen M. Mahan, Washington, D.C., with whom F. Henry Habicht, II, Asst. Atty. Gen., Jacques B. Gelin, and Steven M. Jawetz, Washington, D.C., were on brief for U.S., amicus curiae.

Allan Van Gestel, Boston, Mass., with whom Christopher P. Davis and Goodwin, Procter & Hoar, Boston, Mass., were on brief for appellee Cumberland Farms, Inc.

Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This case presents the first opportunity for a court of appeals to determine whether a party seeking to recover its response costs under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sec. 9607, must comply with the 60-day waiting period prescribed in CERCLA section 112(a), 42 U.S.C. Sec. 9612(a). 1 Also contested as part of this appeal is whether the amended version of section 7002 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6972, which eliminates RCRA's 60-day notice requirement for cases involving hazardous waste violations, applies retroactively to cases initiated before 1984.

I. Factual Setting.

We begin by presenting the facts as set forth in plaintiff's complaint. Appellant Dedham Water Company ("Dedham Water") is a Massachusetts corporation and public franchisee responsible for supplying drinking water to approximately 40,000 residents in the towns of Dedham and Westwood. Its principal source of public drinking water is the White Lodge Well Field, located on the west bank of the Neponset River. On May 30, 1979, the Massachusetts Department of Environmental Quality Engineering ("DEQE") ordered appellant to remove from service two of the four White Lodge wells due to the presence of high concentrations of volatile organic compounds ("VOCs") in the water drawn from these wells. Following an investigation to determine the source of this contamination, the DEQE discovered that appellee Cumberland Farms, Inc. ("Cumberland Farms") 2 was unlawfully discharging VOCs at its facility on the east bank of the Neponset River, across from the White Lodge field. On March 4, 1982, Dedham Water notified Cumberland Farms of its plan to conduct a hydrogeological study to determine the source and scope of contamination at the White Lodge field and also informed appellee that it was incurring response costs 3 as a result of the contamination. Although Cumberland Farms failed to cooperate with the testing, the hydrogeological study allegedly concluded that Cumberland Farms was indeed a source of contamination of the well field.

On October 8, 1982, following receipt of the results of the hydrogeological study, Dedham Water sent two letters to Cumberland Farms. These letters notified appellee of Dedham Water's intention to file suit under RCRA, 42 U.S.C. Secs. 6901-87, and the federal Clean Water Act ("CWA"), 33 U.S.C. Secs. 1251-1376. The letters did not mention the possibility of legal action pursuant to the provisions of CERCLA, 42 U.S.C. Secs. 9601-57. Thirteen days later, on October 21, 1982, Dedham Water filed an action in federal district court seeking injunctive relief, response costs, and damages based on RCRA, CWA, CERCLA, and various Massachusetts statutory and common

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law theories of liability. Cumberland Farms responded on November 15, 1982, by filing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (6), alleging that appellant had failed to comply with the statutory notice requirements contained in all three federal statutes. The district court originally denied this motion, holding that Dedham Water had constructively complied with the relevant notice provisions. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515 (D.Mass.1983).

Appellee renewed its motion to dismiss on July 3, 1985, following the announcement of this court's decision in Garcia v. Cecos International, Inc., 761 F.2d 76 (1st Cir.1985). In Garcia we held that a plaintiff's failure to comply with RCRA's 60-day notice provision "foreclose[d] the possibility of jurisdiction under RCRA." Id. at 83. Relying on Garcia, the district court granted appellee's renewed motion, 643 F.Supp. 667. The court ruled that appellant's failure to comply with the 60-day notice requirement deprived it of jurisdiction over the RCRA claim and that the 1984 amendment to RCRA, which eliminated the notice requirement for hazardous waste cases, should not be applied retroactively. It also held that the 60-day pre-claim notice provision contained in CERCLA section 112(a) applied to this case and deprived it of jurisdiction over appellant's CERCLA claim. 4 Accordingly, the district court entered judgment in favor of Cumberland Farms. We reverse.

II. The CERCLA Claim.

Appellant argues that the district court erred in holding that strict compliance with the 60-day notice provision of CERCLA section 112(a) is a jurisdictional prerequisite to a private action for the recovery of response costs directly from the responsible party under CERCLA section 107. 5 Section 112(a) provides:

All claims which may be asserted against the Fund pursuant to section 111 of this title [42 U.S.C. Sec. 9611] shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 107 of this title [42 U.S.C. Sec. 9607]. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor, or other person or to

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present the claim to the Fund for payment.

42 U.S.C. Sec. 9612(a). 6 Because appellant has not sought reimbursement for its response costs from the Hazardous Substance Response Fund ("Fund" or "Superfund"), it contends that it was under no obligation to provide notice sixty days prior to initiating its CERCLA action. We agree. Although the district courts that have considered this issue have differed in their interpretation of the statute, we believe that appellant's position finds support in the language, structure, legislative history, and purpose of the statute.

  1. Case Law.

    Our research reveals that eleven district courts, including the court below, have attempted to resolve the issue of whether a party seeking to recover its response costs from a party responsible for the release of hazardous substances may bring an action under CERCLA section 107 without providing the 60-days notice required by the claims procedure of CERCLA section 112(a). Demonstrating that this is not an easy question, five courts have held that presuit notice is required, Walls v. Waste Resources Corp., No. 2-83-418, slip op. (E.D.Tenn. March 28, 1986) (report and recommendation of magistrate); Idaho v. Howmet Turbine Component Corp., 627 F.Supp. 1274, 1278 (D.Idaho 1986); Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1442 (S.D.Fla.1984); United States v. Allied Chemical Corp., 587 F.Supp. 1205, 1207 (N.D.Cal.1984); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 588 F.Supp. at 515; and six have held that presuit notice is not required, see United States v. Dickerson, 640 F.Supp. 448, 452 (D.Md.1986); Screen Art, Inc. v. David Witherspoon, Inc., No. 3-85-1159, slip op. at 3 (E.D.Tenn. February 24, 1986); Idaho v. Bunker Hill Co., 634 F.Supp. 800, 805 (D.Idaho 1986); United States v. Conservation Chemical Co., 619 F.Supp. 162, 209-11 (W.D.Mo.1985); Colorado v. ASARCO, Inc., 616 F.Supp. 822, 825 (D.Colo.1985); New York v. General Electric Co., 592 F.Supp. 291, 300 (N.D.N.Y.1984). Faced with these two distinct lines of authority in the recent Bunker Hill case, Judge Ryan identified the first group as the "Dedham line of cases" (recognizing the pivotal status of the 1983 decision of the court below) and the second as the "General Electric line of cases." Bunker Hill, 634 F.Supp. at 804-05.

    For the reasons elaborated below, we agree with Judge Ryan that the General Electric line of cases is better reasoned and provides the proper interpretation of CERCLA. We find the Dedham line of cases to be characterized by a dearth of cogent analysis. For instance, even though--or perhaps because--no other court had yet faced this issue in 1983, the original published order in the case now before us limited its discussion of the interaction of sections 107 and 112 to a single conclusory sentence. 7 Dedham Water, 588 F.Supp. at 517. The district courts in the Allied Chemical, Bulk Distribution, and

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    Howmet Turbine cases subsequently adopted the Dedham approach because they, too, apparently believed that the language of the statute mandated this result. See Howmet Turbine, 627 F.Supp. at 1279; Bulk Distribution, 589 F.Supp. at 1448; Allied Chemical, 587 F.Supp. at 1207. None of these cases engaged in a careful analysis of the statutory language, nor did any probe the legislative history or congressional purpose underlying CERCLA. The Walls case, the most recent addition to the Dedham line, goes little further in developing the analysis of this issue. It borrows some conclusory language from the Howmet Turbine opinion, purports to analyze the language of section 112(a), and observes that section 107 cannot...

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