ELR Citation: ELR 21378
No(s). s. 94-1875 et al (8th Cir. May 10, 1995)

The court holds that defendants are responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for one-third of the response costs plaintiff incurred uncovering defendants' liability for cleanup of tetrachloroethylene (PERC), even though defendants contributed only 10 percent of the volume of pollution at the site. Plaintiff discovered the PERC while investigating its own spill of trichloroethane (TCA). The court first rejects defendants' argument that they should not be liable under CERCLA for that portion of the response costs that are attributable to the investigation of contamination on plaintiff's site. CERCLA cannot be read to require a plaintiff to prove that each type of response cost was separately caused by defendants' release. The Act's plain language indicates that once a party is found liable, it is liable for its share of "any" and all response costs, not just those costs "caused" by its release. Also, policy considerations and U.S. Supreme Court reasoning in Key Tronic Corp v. United States, 24 ELR 21282 (1994), preclude defendants' interpretation. The court next holds that the defendant that supervised the day-to-day operations of the facility from which the PERC was released is an operator under CERCLA §107. The court upholds the district court apportionment to defendants of liability for 33 percent of the response costs even though they contributed only 10 percent of the volume of pollution. PERC is more toxic than TCA, and the greater toxicity added to the cleanup costs. Also, PERC is a carcinogen and TCA is not. And PERC is more difficult to remove than TCA and causes greater environmental harm. CERCLA seeks to remedy harm to the environment, and the more toxic chemical causes the greater harm.

The court holds that plaintiff may not recover its attorney fees under CERCLA, but may recover one-third of its attorney fees under state law. Plaintiff was the prevailing party, and an award of attorney fees under state law is not precluded simply because damages were recovered under CERCLA rather than state law. The court reverses plaintiff's award of attorney fees under CERCLA.

Counsel for Appellee
Edwin R. Holmes
7570 W. 147th St., Ste. 100, St. Paul MN 55124
(612) 432-8111

Counsel for Appellant
Leon R. Erstad
Erstad & Riemer
3800 W. 80th St., Minneapolis MN 55431
(612) 896-3700

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, and FAGG, Circuit Judge