ELR Citation: ELR 21045
No(s). 96-30202 (5th Cir. Apr 21, 1997)

The court holds that plaintiff landowners may not recover money they spent testing for hazardous substances on their property under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because they failed to establish that they were justified in incurring response costs. The landowners established that there was a release from an adjacent oil refinery. But there is no evidence to support the district court's finding that lead on the landowners property exceeded background levels and thus constituted a release that caused the landowners' response costs. The U.S. Geological Survey on which the landowners rely does not establish a legal standard background level for lead and may not even be relevant, as the survey measurements were taken 30-50 miles away from the landowners' property. Also, the drinking water and toxic characteristic leaching procedure standards for lead are irrelevant. Thus, the landowners are unable to establish that any regulatory standard has been breached. While a CERCLA plaintiff may prove that response costs were caused by a release without resort to an applicable legal standard of justification, bare proof that there was a release is not enough. The question of whether a release has caused the incurrance of response costs should rest on a factual inquiry into the circumstances of a case, and the relevant factual inquiry should focus on whether the particular hazard justified any response actions.

Counsel for Plaintiffs
Manuel A. Fernandez
Stroock, Stroock & Lavan
First Union Financial Center
200 S. Biscayne Blvd., Ste. 3300, Miami Fl 33131
(305) 358-9900

Counsel for Defendant
James F. Shuey
Frilot, Partridge, Kohnke & Clements
3600 Energy Center
1100 Poydras St., New Orleans LA 70163
(504) 599-8000

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.