ELR Citation: ELR 21487
No(s). 96-20817 (5th Cir. Jul 31, 1997)

The court affirms a district court decision that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes the U.S. Environmental Protection Agency (EPA) to recover costs expended in overseeing a hazardous waste cleanup that was conducted by private parties. The court rejects United States v. Rohm & Haas, 23 ELR 21345 (1993), which held that the government cannot recover oversight costs for a private-party cleanup, because Rohm & Haas represented a significant departure from prior case law.

By examining the terms "response," "removal," and "remedial action" as defined by CERCLA, the court holds that CERCLA's plain language and liability scheme authorize EPA's cost recovery for the oversight of private-party response actions. EPA oversight is a necessary part of the "removal" process and ensuring compliance with public health standards. Furthermore, government oversight of private-party "remedial actions" ensures that remedial actions will be effective in preventing or minimizing past or threatened releases, the essence of the definition of remedial action. Also, government monitoring or oversight reasonably required to assure that private-party actions protect the public health and welfare and the environment also qualifies as response activity under the "enforcement activities" component of the response definition. The court notes that any other reading of the statutory terms would produce a result that conflicts with CERCLA's goal of compelling private parties to perform cleanup operations. In addition, an absurd incongruity would result if the court were to permit the government to recover its costs for oversight of its own contractors, but not recover the costs of oversight of private-party contractors.

[The district court's opinion is published at 25 ELR 20470.]

Counsel for Plaintiff
John T. Stahr, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Mark J. White
Baker & Botts
1600 San Jacinto Ctr.
98 San Jacinto Blvd., Austin TX 78701
(512) 322-2500

Before Davis and Stewart, JJ.