State of Colo. v. Asarco, Inc.

Decision Date29 August 1985
Docket NumberCiv. A. No. 83-C-2383.
PartiesSTATE OF COLORADO; The Water Quality Control Division, Division of Administration, Colorado Department of Health; The Water Quality Control Commission, Colorado Department of Health; The Waste Management Division, Colorado Department of Health; and The Colorado Department of Health, Plaintiffs, v. ASARCO, INCORPORATED, A New Jersey Corporation, Defendant.
CourtU.S. District Court — District of Colorado

Howard Kenison, Jacqueline H. Berardini, Denver, Colo., for plaintiffs.

Harry Hobson, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

In its first amended complaint, the State of Colorado ("State" or "plaintiff") alleges that ASARCO is liable under § 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607, for damages for injury to, destruction of, and/or loss of natural resources caused by releases of hazardous substances from ASARCO's Globe Plant, and for response costs incurred and to be incurred by the State at the site. The State also asserts pendent state law claims for statutory nuisance, strict liability, and negligence.

ASARCO has moved to dismiss the plaintiff's CERCLA claims pursuant to Fed.R. Civ.P. 12(b)(6), or, in the alternative, for summary judgment on these claims under Fed.R.Civ.P. 56. The parties have briefed the issues, and oral argument would not assist in resolving them.

I.

ASARCO first argues that the plaintiff's claims are barred by its failure to present a claim letter to ASARCO sixty days before commencing this action as required by CERCLA § 112(a), 42 U.S.C. § 9612(a). That section provides:

"All claims which may be asserted against the Fund pursuant to section 111 of this title 42 USC § 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 USC § 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 present the claim to the Fund for payment."

A "claim" is defined as a "demand in writing for a sum certain." 42 U.S.C. § 9601(4). Plaintiff presented to ASARCO a "Notice and Claim Against ASARCO Incorporated for Costs and Damages Pursuant to 42 U.S.C. § 9612," dated December 2, 1983. In that claim, the plaintiff notified ASARCO that, based upon information and belief, releases of hazardous substances, including arsenic, lead, cadmium, and selenium, had occurred at the Globe Plant facility and had contaminated natural resources of the State, including surface soils, surface water, ground water, and air. The notice concluded, "The state hereby makes its claim pursuant to section 112 of the Act (42 U.S.C. § 9612) and demands that the state be compensated for costs and damages in the amount of $50,000,000 per release, subject to adjustment based on federal regulations and/or assessment of natural resource damage." The complaint in this action was filed on December 9, 1983.

Indisputably, the State did not present its claim sixty days prior to commencing this action, nor did the claim demand a sum certain. The figure $50,000,000 per release is merely the statutory maximum for liability for damage to natural resources. 42 U.S.C. § 9607(c)(1)(D). The State gave no indication of the number of releases nor even an estimated value of actual damage to natural resources. ASARCO argues that presentment of a claim letter to a potentially responsible party is a condition precedent to bringing a § 107 action and that since the condition was not fulfilled, the claim must be dismissed. See Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437 (S.D.Fla.1984) (before a private claimant can commence a cost recovery action against another private party, it must first serve a letter demanding a "sum certain" to cover the costs of the clean-up operation; presentment of a demand letter is a condition precedent to bringing the action.) United States v. Allied Chemical Crop., 587 F.Supp. 1205 (N.D.Cal.1984) (notice of claim pursuant to § 112(a) is a prerequisite to bringing suit under § 107, including actions brought by the government); see also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 588 F.Supp. 515 (D.Mass.1983).

Plaintiff argues that presentation of a claim letter is not a jurisdictional prerequisite to suit under § 107. It bases this argument on the prefatory language of that section which states, "Notwithstanding any other provision or rule of law...." Plaintiff contends that this language means that § 107 stands completely apart from the procedures in § 112 (and from all other provisions of the Act.)

Other courts have relied on this language in holding that § 107 is entirely distinct from other sections of the Act and that § 107 is not subject to the procedures of § 112. See Homart Development Co. v. Bethlehem Steel Corp., 22 E.R.C. 1357, 1367 (N.D.Cal.1984); Pinole Point Properties v. Bethlehem Steel Corp., 596 F.Supp. 283, 288-89 (N.D.Cal.1984); United States v. Wade, 577 F.Supp. 1326, 1334-36 (E.D. Pa.1983); Wehner v. Syntex Corp., 22 E.R.C. 1373, 1375 (E.D.Mo.1983); United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1117-18 (D.Minn.1982). In my view, this is not a proper basis for holding § 112 inapplicable to § 107 actions. It is true that many of the provisions of § 112 apply only to claims asserted against the Superfund and have no meaning in a § 107 court action. However, § 112(d) contains the statute of limitations applicable to both court actions and claims against the Fund. The prefatory language of § 107 clearly was not intended to exempt § 107 actions from the statute of limitations. Section 112, therefore, cannot be ignored in its entirety; rather each of its provisions must be analyzed separately to determine its applicability.

While the prefatory language of § 107 does not resolve the issue, the language of § 112 itself suggests that the plaintiff's failure to comply with the notice requirement does not bar this action. Under § 112(a), the notice requirement applies to "All claims which may be asserted against the Fund pursuant to section 111 42 U.S.C. § 9611...." The plaintiff's claim in this case is not one which may be asserted against the Fund under § 111. The State could not obtain any money from the Fund for "restoration, rehabilitation, or replacement or acquisition of the equivalent of any natural resources" (§ 107(f)) because the Environmental Protection Agency ("EPA") and the governor have not developed and adopted any plan for use of such funds as required by § 111(i). Nor can the State's claim for response costs be asserted against the Fund because the State has not entered into a contract or cooperative agreement with the federal government pursuant to § 104(c)(3), 42 U.S.C. § 9604(c)(3), and 40 C.F.R. § 300.62(c)(1). Indeed, the State's claims against the Fund under §§ 111 and 112 for natural resource damages at this and other sites were rejected by the EPA. (Letter dated January 27, 1984, from Jack W. McGraw, Acting Assistant Administrator of the Office of Solid Waste and Emergency Response of the EPA to Thomas Looby, Acting Assistant Director of the Colorado Department of Health, attached as Exhibit D to Plaintiff's Brief in Opposition.)

The preferred interpretation of § 112 was adopted in New York v. General Electric Co., 592 F.Supp. 291 (N.D.N.Y.1984) in which the court decided this issue in a similar factual context. General Electric received a claim letter from New York on November 30, 1983. The letter did not request a sum certain and suit was filed only eight days later. The court there held that failure to comply with the sixty-day notice requirement did not require dismissal of the action. Judge Miner stated:

"First, and perhaps most importantly, defendant's reliance on the sixty-day notice requirement is misplaced. The first sentence of section 112(a) expressly provides that `all claims which may be asserted against the Fund the Superfund pursuant to section 9611 of this title shall be presented in the first instance to the owner....' 42 U.S.C. § 9612(a). It is clear, therefore, that the notice provision applies only to actions in which a claim is sought to be made against the Fund; it does not apply when a CERCLA case is merely brought against a responsible party such as GE. Notification in Fund cases is a necessary prerequisite aimed at conserving the assets of the Superfund by encouraging responsible parties to pay clean-up costs before a plaintiff is forced to look to Fund money. Because New York's suit here involves claims for certain costs which may not be asserted against the Fund, but only against GE, the provisions of section 112(a) are not applicable.
Second, the Court is persuaded that in any event, the sixty-day requirement is not jurisdictional. The cases cited by GE, which arose in the context of suits involving other environmental statutes, embodied interpretations of significantly different statutory mechanisms. Unlike the Clean Water Act and the Clean Air Act, which impose notice requirements that are compatible with those statutes' preference for initial administrative rather than private action, see Massachusetts v. United States Veterans Administration, 541 F.2d 119, 121 (1st Cir.1976), the purpose of CERCLA seems only to require notice in order to facilitate negotiated settlements. The fact that sixty days elapsed prior to the instant motions comports with the pragmatic approach to the notice requirement, since the parties were afforded adequate time in which to avoid any court intervention." 592 F.Supp. at 300-01.

Further support for this...

To continue reading

Request your trial
10 cases
  • Artesian Water Co. v. Gov. of New Castle County
    • United States
    • U.S. District Court — District of Delaware
    • April 24, 1987
    ...a binding election to pursue its remedy through the Superfund and that its section 107 claim must be dismissed. In Colorado v. Asarco, Inc., 616 F.Supp. 822 (D.Colo.1985), the court rejected a similar argument where the plaintiff had presented its Superfund claim the day after it filed its ......
  • Kelley v. Thomas Solvent Co., K86-164
    • United States
    • U.S. District Court — Western District of Michigan
    • March 7, 1989
    ...United States v. Dickerson, 640 F.Supp. 448 (D.Md.1986); United States v. Mottolo, 605 F.Supp. 898 (D.N.H.1985); Colorado v. ASARCO, Inc., 616 F.Supp. 822, 825-26 (D.Col.1985); United States v. Conservation Chemical Co., 619 F.Supp. 162, 210-11 (D.Mo.1985); United States v. Wade, 577 F.Supp......
  • Dedham Water Co. v. Cumberland Farms Dairy, Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 10, 1986
    ...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 i......
  • Utah State Dept. of Health v. Ng, Civ. No. C86-0023G.
    • United States
    • U.S. District Court — District of Utah
    • November 24, 1986
    ...Even if the notice requirement could be said to apply to Section 107, however, this court follows and agrees with Colorado v. Asarco, Inc., 616 F.Supp. 822, 825 (D.Colo.1985) wherein Judge Carrigan held the notice requirement not to be 2. CERCLA CLAIMS—INJUNCTIVE RELIEF Defendants seek to h......
  • Request a trial to view additional results
1 books & journal articles
  • Valuing the environment: courts' struggles with natural resource damages.
    • United States
    • Environmental Law Vol. 32 No. 1, January 2002
    • January 1, 2002
    ...v. Cotter Corp., No. 83-C-2389 (D. Colo. 1988); Colorado v. Union Carbide Corp., No. 83-C-2384 (D. Colo. 1987); Colorado v. ASARCO, 616 F. Supp. 822 (D. Colo. 1985) (discussing damages caused by the release of hazardous substances from plant and associated response costs incurred by the (18......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT