ELR Citation: ELR 21120
No(s). MO-88-CA-05 (W.D. Tex. Mar 8, 1990)

the court holds that the government's response costs under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 for the chromium contamination of an aquifer having potential residential use are consistent with the national contingency plan. As a result of citizen complaints of discolored water and subsequent state and federal remedial invesitgations, feasibility studies, and an ultimate decision to connect affected citizens to an alternative water source, the government sought recovery of response costs totaling over $1.62 million. The court holds that the government's decision to install an alternate water source was not arbitrary or capricious. Although affected residents said they did not drink the contaminated water, the government had no guarantee that contaminated water would not be used in the future for cooking, bathing, and other activities that would bring the contaminated water into residents' bodies. The court also holds that the government's decision to select an alternative water source over all other alternatives, including a "no action" option and a bottled water alternative, was prudent and neither arbitrary nor capricious, since chromium levels exceeded the maximum concentration limits for chromium under the Safe Drinking Water Act. The court holds that the Environmental Protection Agency adequately solicited and evaluated public comment. Further, the court holds that Congress did not intend to allow a responsible party to sit back after refusing to perform remedial actions only to attack every cost associated with the government's response action, and only gross misconduct on the part of the government will bar recovery. The court requests that adequate accounting documentation be submitted by both parties. The court holds that the government's indirect costs, litigation expenses, and prejudgment interest on response costs are recoverable under CERCLA, and postpones final damages determination until itemized expense work sheets are submitted.

Counsel are listed at 20 ELR 21117.