ELR Citation: ELR 21570
No(s). 92-2541-CIV (S.D. Fla. Jun 23, 1993)

The court holds that a landowner stated a private cost recovery claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by alleging investigatory and monitoring costs as response costs in its complaint against a former landowner, but it did not prove a prima facie case because genuine issues of material fact remain regarding ownership of the property during the release of hazardous substances. First, the court holds that the landowner need not file a demand letter before instituting a CERCLA private cost recovery action. Case law clearly indicates that the notice requirement of CERCLA §112(a) only applies to actions against the Hazardous Substance Response Fund. The court holds that the landowner need not obtain governmental approval before filing this private cost recovery action. Recent case law that interprets CERCLA and accounts for the U.S. Environmental Protection Agency's (EPA's) 1985 revision to the national contingency plan (NCP) indicates that EPA has made it clear that the lead agency does not have to evaluate and approve a response action for cleanup costs. The shift in EPA's NCP regulations also supports the prevailing view that government approval is not required for consistency with the NCP. The court holds that the landowner's allegation that it has incurred investigatory and monitoring costs, in addition to its other allegations, satisfies the requirement of alleging a prima facie case. The investigatory and monitoring costs alleged in the complaint are response costs that are consistent with the NCP. The court further holds that the landowner need not allege the commencement of cleanup procedures as part of its complaint. A prima facie case under CERCLA does not include the implementation of cleanup programs. The court holds that the landowner need not prove consistency with the NCP for its investigatory costs. Case law has consistently held that investigatory costs are recoverable irrespective of their consistency with the NCP. The court holds, however, that the landowner has failed to carry its burden of proof on the issue of consistency with the NCP as to cleanup costs. The landowner did not proffer any admissible evidence that would support a finding of consistency with the NCP. Finally, the court holds that there are issues of material fact concerning the cause of contamination, namely ownership of the property during the release of the hazardous substances, which preclude summary judgment for the landowner with respect to cleanup and investigatory costs.

Counsel for Plaintiff
Douglas M. Halsey, Kirk L. Burns
Halsey Law Firm
Southeast Financial Ctr.,
200 S. Biscayne Blvd., Ste. 4180, Miami FL 33131
(305) 375-0077

Counsel for Defendants
Mark T. Kobelinski, Dennis M. Stotts
Peeples, Earl & Blank
One Biscayne Tower
Two S. Biscayne Blvd., Ste. 3636, Miami FL 33131
(305) 358-3000