ELR Citation: ELR 20626
No(s). CV-90-2061 (CPS) (E.D.N.Y. Sep 28, 1993)

The court holds that a city is not entitled to the statutory presumption afforded to states and other entities under §107(a)(4)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that its response costs are consistent with the national contingency plan (NCP), and that it may not recover its attorney fees as response costs under CERCLA. The city of New York sought recovery of over $1 million in response costs it incurred to date cleaning up toxic and dangerous chemicals at a facility located in Astoria, New York. The court first holds that the city should not be treated as a state for purposes of §107(a)(4) and therefore must bear the same burdens of proof and persuasion as any other person seeking response costs. If the city were to be treated as a state, it would be entitled to a presumption that its response costs are consistent with the NCP. The plain language of §107(a) indicates Congress' intent that municipalities' entitlement to recover response costs should be determined under §107(a)(4)(B), the section under which private parties seek response costs. That Congress explicitly mandated similar authority to states and their political subdivisions in some sections of CERCLA but not in others buttresses the court's finding that Congress intended to treat states and their political subdivisions differently with regard to the NCP. Next the court holds as to one of the defendants that he was a covered person under §107(a). During the time that he was an "operator" and 50 percent owner of the facility, hazardous substances were disposed of at the facility. The court holds that the city may recover the costs it incurred in its initial investigation and monitoring of the release, because these costs are recoverable regardless of compliance with the NCP. Regarding the balance of the city's response costs, for which the city never argued that its removal actions were consistent with the NCP, the court denies the city's motion for summary judgment without prejudice to its renewal to make a showing that its costs were consistent with the NCP. Finally, the court follows the analysis used by a majority of district judges in the Second Circuit to hold that the city's attorney fees are not recoverable response costs under §107(a)(4)(B). CERCLA's legislative history reveals that Congress intended to allow states and the federal government to recover legal costs associated with site remediation, but did not expressly grant the same privilege to private parties.

[Counsel not available at this printing.]