ELR Citation: ELR 20923
No(s). 91-1402-MLB (D. Kan. Dec 28, 1993)

The court holds that private parties may recover certain nonlitigation attorney fees as response costs in their cost recovery suit under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a metal fabrication business that contaminated the groundwater at a site it leased from plaintiffs. The court first holds that under the Tenth Circuit's decision in FMC Corp. v. Aero Industries, Inc., 23 ELR 21312 (1993), plaintiffs cannot recover attorney fees incurred in litigating the cost recovery action, but that they may seek to recover reasonable and necessary attorney fees for removal-related nonlitigation activities. The court next denies summary judgment to defendant on the issue of plaintiff's failure under CERCLA §113(l) to timely provide notice of the suit to the U.S. Environmental Protection Agency and the Attorney General. The court is unable to determine from the record whether plaintiff's failure has caused prejudice to defendant by subjecting it to double liability. The court orders the parties to undertake specific measures to obtain this information. The court also denies summary judgment to defendant on the issue of the consistency of plaintiffs' actions with the national contingency plan (NCP), because factual disputes exist concerning what actions plaintiffs have already taken. The court also holds that provisions in a consent decree between plaintiffs and the state that establish a community relations program are sufficient to satisfy NCP public participation requirements. Turning to plaintiffs' claims under Kansas law, the court holds that defendant's metal fabrication activities, which include the use of trichloroethylene (TCE), do not constitute an abnormally dangerous activity under Restatement (Second) of Torts §§519 and 520, and thus do not trigger strict liability. The business involves neither a high degree of risk nor a likelihood of great harm resulting from that risk, and when used properly, TCE poses virtually no threat to the environment.

Counsel for Plaintiffs
Brian G. Grace, Jana C. Werner
Grace, Unruh & Pratt
155 N. Market St., Ste. 501, Wichita KS 67202
(316) 269-2006

Counsel for Defendant
David G. Seely, Stephen M. Stark
Fleeson, Gooing, Coulson & Kitch
125 N. Market St., Ste. 1600, P.O. Box 997, Wichita KS 67201
(316) 267-7361