that in this case the facts reveal that all post CERCLA costs were clearly incurred by the Town acting on the direction of the NJDEP and thus, I find, as an authorized representative of the state to this extent.
On the basis of the foregoing, I find that either by liberally construing the language of CERCLA in light of its broad remedial purposes or by specifically construing § 9607(f) in light of state law giving municipalities broad powers, a municipality is a state or authorized representative thereof for purposes of invoking the provisions of CERCLA. I believe that such a construction of the Act is consistent with its purpose to encourage and facilitate the cleanup and treatment of hazardous wastes in order to protect and preserve natural resources and the public health.
I turn now to the question of what response costs may be recovered under CERCLA. It is undisputed that the effective date of CERCLA was December 11, 1980. 42 U.S.C. § 9652(a). The question of the retroactivity of CERCLA has involved the courts in two issues: (1) does CERCLA provide liability for response cost incurred with regard to pre-CERCLA acts and (2) if so, does CERCLA provide for liability of costs incurred pre-CERCLA or only for costs incurred post-CERCLA albeit for pre-CERCLA acts, since the facts in this case indicate that all of the acts of dumping covered by CERCLA were performed prior to December 11, 1980. However, it appears that some of the response costs incurred by the Town of Boonton were incurred prior to that date. Both issues are therefore before this court.
As to the first, defendant does not dispute and courts have universally held that CERCLA provides liability for acts within its scope but prior to its effective date. See U.S. v. Shell Oil Co., 605 F. Supp. 1064, 15 ELR 20337, 20340 (D. Colo. 1985); U.S. v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 839 (W.D. Mo. 1984) (and cases cited therein).
Courts have divided, however, over the question of whether CERCLA is retroactive to the extent that costs incurred prior to December 11, 1980, are recoverable under the Act. Compare Shell Oil, 605 F. Supp. 1064, 15 E.L.R. at 20340 (holding that pre-CERCLA costs are recoverable) with Northeastern Pharmaceutical, 579 F. Supp. at 843. Although I am cognizant that there is a presumption against retroactivity which may only be overridden if retroactivity "be 'the unequivocal and inflexible import of the terms [of the statute], and the manifest intention of the legislature,'" U.S. v. Security Industrial Bank, 459 U.S. 70, 79, 74 L. Ed. 2d 235, 103 S. Ct. 407 (1983) quoting Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 58 L. Ed. 179, 34 S. Ct. 101 (1913) (citations omitted), I am nevertheless persuaded that Congress intended all costs including those incurred before the effective date of the Act to be recoverable under CERCLA. I base my conclusion in this regard on the exhaustive analysis of this issue by Judge Carrigan in the Shell Oil case. Judge Carrigan concluded as I have, "that the unavoidably retroactive nature of CERCLA, and Congress' decision in CERCLA to impose the cost of cleaning up hazardous waste sites on the responsible parties rather than on taxpayers, strongly indicate Congressional intent to hold responsible parties liable for pre-enactment government response costs." Shell Oil, 605 F. Supp. at 1073, 15 E.L. R. at 20340.
I agree with the Court in Shell Oil that where there is evidence that a statute was "rushed through a lame duck session of Congress," see State of Ohio ex rel. Brown v. Georgeoff, 562 F. Supp. 1300, 1310 n.12 (N.D. Ohio 1983), the directly conflicting verb tenses of the liability provision in effect "cancel each other" and ought not to be considered dispositive on the question of retroactivity. See Shell Oil, 605 F. Supp. at 1073, 15 E.L.R. at 20340 discussing 42 U.S.C. § 9607(a)(4). I therefore do not believe that the case of Summers v. Skibs A/S Myken, 191 F. Supp. 929, 930 (E.D. Pa.), aff'd per curiam, 296 F.2d 548 (3d Cir. 1961) is controlling on the issue before me.
Similarly, I am persuaded by Judge Carrigan's analysis that the requirement in the Act that costs be consistent with the National Contingency Plan (NCP) in no way precludes a conclusion that the Act was intended to provide for recovery of pre-CERCLA costs incurred. Regardless of whether the original or revised NCP is utilized for this determination, I agree with Judge Carrigan that "nothing prevents . . . recovery of costs later determined to be consistent with the NCP. The consistency requirement addresses the nature of the response action for which costs can be recovered, not the timing of the action." 605 F. Supp. at 1074, 15 E.L.R. at 20340.
Further, I agree that "Congress implicitly authorized retroactive application of sections 107(a)(4)(A) and (B) by affirmatively limiting retroactive application of the third category of liability, damages to natural resources, section 107 (a)(4)(C). "
It is true as Judge Carrigan notes that at least two courts have felt constrained to find against retroactivity on this point because of the absence of a clear affirmative statement in the Act. See Northeastern Pharmaceutical, 579 F. Supp. at 842; U.S. v. Wade, 577 F. Supp. 1326 (E.D. Pa. 1983). However, as recently as 1983, as noted supra, the Supreme Court required only that the unequivocal and inflexible import of the statute and the manifest intention of Congress in favor of retroactivity be shown. Security Industrial, 459 U.S. at 79. (citations omitted). There is no requirement that retroactivity be expressly provided for in the Act. Here, I find that the clear unequivocal thrust of CERCLA by its terms and by the legislative history discussed in the Shell Oil case, is to provide for retroactivity in all respects that do not offend basic constitutional principles of fairness and due process. No party has argued, nor do I find, any such principles offended by the retroactive application of CERCLA to costs incurred prior to the Act's effective date. I therefore find that such response costs may be recovered by plaintiff herein.
In sum, I note that this court is not unaware of the importance of the issues raised herein and my heavy reliance on Judge Carrigan's opinion should not be construed as an abdication of the responsibility of this court to consider the issues raised anew. Instead, I have carefully reviewed the statute, the legislative history and the caselaw and, for the reasons set forth in the Shell Oil opinion and reiterated by this court supra, I have concluded that pre-CERCLA response costs are coverable and that they may be recovered by the plaintiff herein if all other issues of fact are resolved in plaintiff's favor with the sole exception set forth in § 9607(f) regarding claims under § 9607(a)(4)(C).
The continued portion of defendant's summary judgment motion is denied.
This matter having come before the Court on the defendant's motion for summary judgment and argument having been heard and an oral opinion having been rendered on a continued portion of defendant's motion on July 24, 1985;
It is on this 14th day of November, 1985;
ORDERED that the oral opinion rendered on July 24, 1985 shall be deemed superceded and amended by the opinion filed this date. Summary judgment is, as previously ordered, denied.
HAROLD A. ACKERMAN, U.S.D.J.
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