ELR Citation: ELR 20453
No(s). 89-2845 (8th Cir. Dec 12, 1990)

The court rules that §107(a)(4)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes private parties to recover attorney fees and expenses from a responsible party in an action for response costs. The owner of a contaiminated typewriter plant site sued a former owner for recovery of costs expended to clean up the site pursuant to a consent decree. The court first holds that the former owner may not raise an "unclean hands" defense. CERCLA is a strict liability statute, and only the defenses explicitly outlined within its provisions are available. The motives of a private party attempting to recover response costs under §107(a)(4)(B) are irrelevant, and to question them would frustrate timely cleanup of hazardous waste sites. The court next holds that the excavation of soil and buried drums at the site constituted a "removal" action under CERCLA rather than a "remedial" action for which CERCLA's implementing regulations would require cost-effectiveness and an opportunity for public involvement. Although CERCLA's definition of remedial action lists excavations as a remedial example, and its definition of removal action does not explicitly mention excavations, an excavation is not beyond the pale of a removal action. In a footnote, the court observes that the approximate one-year cleanup period was not too time-consuming to be considered a removal. Next, the court holds that the costs of the removal action are recoverable under CERCLA §107(a)(4)(B) because the response was performed consistent with CERCLA's removal action guidelines. The court further holds that the former owner is not entitled to apportion the cleanup costs based on its assertion that some of the costs were expended merely to realize a profit on sale of the property. The record does not demonstrate any response action taken over and above that required to satisfy applicable state standards incorporated into CERCLA's response action guidelines.

Finally, the court holds that CERCLA §107(a)(4)(B)'s provision for private-party recovery of the "necessary costs of response" extends to attorney fees and expenses. Because the definition of "response" in CERCLA §101(25) encompasses enforcement activities related to removal and remedial actions, the court holds that attorney fees incurred in a private-party CERCLA response action are recoverable as related enforcement costs. The court reasons that it would impermissibly strain the statutory language to exclude attorney fees from the "necessary costs" that §107(a)(4)(B) allows private parties to recover. Further, to force a nonpolluter to absorb litigation costs that approach or exceed response costs serves as a disincentive to the polluter to clean the site and undermines CERCLA's purposes of prompt cleanup and imposition of costs on the responsible party.

[The district court decisions are published at 19 ELR 21433 and 20 ELR 20921.]

Counsel for Appellee
James L. Moeller
Gage & Tucker
2345 Grand Ave., P.O. Box 418200, Kansas City MO 64141
(816) 474-6460

Counsel for Appellants
Mathew Placzek
Joyner, Placzek & Francis
1722 S. Glenstone, Ste. J, Springfield MO 65804
(417) 887-7229

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.