ELR Citation: ELR 21336
No(s). 95-722 (CRR) (D.D.C. Apr 16, 1996)

The court holds that a party may assert a claim for future response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) even though it unsuccessfully asserted a claim for past response costs. The court first modifies a prior order to reflect that the defendant United States conceded that it is a potentially responsible party under CERCLA §107(a)(2) with respect to polychlorinated biphenyl contamination on the eastern portion of a contaminated site. The court next holds that a claim for recovery of past costs is not a prerequisite to a claim for future costs. Because a claim for declaratory relief seeks to fix liability for future costs, it is nonsensical to require that plaintiff demonstrate that he has already incurred such costs. In addition, to hold that not yet incurring recoverable response costs precludes a party from going forward with respect to future costs would be inconsistent with the remedial nature of CERCLA.

[The court's prior order is published at 26 ELR 21327.]

Counsel for Plaintiff
Lawrence E. Blatnik
Arent, Fox, Kintner, Plotkin & Kahn
1050 Connecticut Ave. NW, Washington DC 20036
(202) 857-6000

Counsel for Defendant
C. Miles Tolbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000