ELR Citation: ELR 20507
No(s). s. CIV 91-525 TUC JMR, 92-564 TUC JMR (D. Ariz. Nov 1, 1993)

The court holds that private parties may not recover medical monitoring costs and attorneys fees as response costs under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by private parties in a personal injury suit against an aircraft company for its hazardous waste disposal that contaminated the plaintiffs' groundwater. The court first holds that plaintiffs may not recover medical monitoring costs as response costs under CERCLA. Private parties may not, in general, recover CERCLA response costs, and even if they could, medical monitoring programs do not constitute response costs. The court holds that CERCLA §113(h) does not bar plaintiffs' state-law claims for medical monitoring costs. Medical monitoring itself is not removal or remedial action, and the suit does not "challenge liability for removal or remedial action within the meaning of §113(h). Moreover, litigation to establish a medical monitoring fund will not frustrate §113(h)'s goal of avoiding cleanup delays, because the suit will not interfere with site cleanup. The court next holds that private parties may not recover attorney fees under CERCLA. The court holds that plaintiffs may pursue state-law claims for attorney fees under the "private attorney general" doctrine, because the medical monitoring program at issue will confer benefits on the general public. Finally, the court grants a motion by plaintiffs in one of the consolidated cases comprising this action for Federal Rules of Civil Procedure 23(b)(2) class certification on their state-law claims for injunctive relief.

Counsel for Plaintiffs
Jerry Cohen
Cohen, Milstein, Hausfeld & Toll
1401 New York Ave. NW, Ste. 600, Washington DC 20005
(202) 628-3500

Counsel for Defendant
Michael J. Neeham
Neeham & Associates
33 N. Stone St., Ste. 830, Tucson AZ 85701
(602) 882-4188