ELR Citation: ELR 20818
No(s). 1:88:CV:619 (W.D. Mich Mar 4, 1993)

The court holds that attorneys fees are recoverable as a response cost in a private suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(a)(4)(B). The court first holds that CERCLA §310, the citizen suit section, which authorizes courts to award litigation costs, was added in 1986 by the Superfund Amendments and Reauthorization Act (SARA) to recognize a different class of plaintiff than the private plaintiff covered by §107, not to assure that attorney fees were recoverable only in citizen suits. Little incentive for early cleanup would exist if §107(a)(4)(B) does not allow recovery of litigation costs, because a company would bring a citizen suit to force the responsible party to clean up a site rather than clean it up itself and sue to recover the response costs, but not litigation costs. This would not be in the best interest of the public health or the welfare of the environment. The court holds that the intent of Congress in adding the SARA amendments must be to allow private parties to recover attorney fees in response cost recovery actions. Otherwise, the phrase "enforcement activities," which was included in the definition of "response," becomes superfluous. The court also holds that a motion for attorney fees is timely filed after the plaintiff has prevailed on its CERCLA claim. Finally, the court holds that the plaintiff failed to adequately justify the amount of its attorney fees, and directs the parties to file a motion asking the court to identify the amount if they cannot come to an agreement.

Counsel for Plaintiff
Charles Barbieri
Foster, Swift, Collins & Smith
313 S. Washington Sq., Lansing MI 48933
(517) 371-8100

Counsel for Defendant
Jacks Combs
Warner, Norcross & Judd
900 Old Kent Bank Bldg., 111 Lion St., Grand Rapids MI 49503
(616) 459-6121