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Price v. Department of the Navy

ELR Citation: 25 ELR 20177
Nos. No. 93-55447, 39 F.3d 1011/39 ERC 1673/(9th Cir., 11/07/1994)

The court holds that the medical monitoring costs of an owner of contaminated land are not recoverable response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and that the owner failed to demonstrate an imminent and substantial danger to health that would have justified a court order under Resource Conservation and Recovery Act (RCRA) §6002 requiring defendant waste generator and former site owners to pay for cleanup of the soil under her house. The court first holds that the fact that the owner's husband, who is not a party to the suit, signed the owner's notice of appeal on her behalf does not warrant dismissal of the appeal. It is clear that the owner is the only appellant, there is no confusion or prejudice to the defendants, and the owner resubmitted the notice with her personal signature promptly. The court next holds that the owner's medical monitoring costs are not recoverable response costs under CERCLA §107(a)(4)(B). The word "monitoring" in CERCLA §101(25)'s provision defining "removal" as including certain actions for prevention or mitigation of damage to the public health refers to actions that prevent contact between spreading contaminants and the public, and monitoring long-term health has nothing to do with preventing such contact. Further, CERCLA's legislative history reveals that Congress deliberately deleted recovery of medical expenses from earlier versions of the bill. Also, CERCLA provides elsewhere an elaborate scheme to assess health effects of threatened hazardous substance releases. The court next holds that the district court's decision that the owner may not recover any attorney fees must be remanded in light of Key Tronic Corp. v. United States, 24 ELR 20955 (U.S. 1994), which held that attorneys fees associated with the identification of other potentially responsible parties are recoverable costs of enforcement activities. The district court did not break down the fees according to the categories that Key Tronic identified as recoverable and nonrecoverable. The court next holds that the district court did not err when it limited the generator's liability to 95 percent and the former owners' liability to 1 percent, because CERCLA does not mandate the imposition of joint and several liability. The court next holds that the owner failed to produce sufficient evidence that the soil under her home presents an imminent and substantial endangerment to health or the environment to support a RCRA injunction requiring the generator to pay for the cleanup of the soil. It was not clear error for the district court to find that the soil under the owner's house was probably like the uncontaminated soil under a neighboring house. Also, the owner failed to show that she must remove the concrete slab under her foundation in order to repair cracks in the slab, which she alleges will cause a release of the contaminants.

Counsel for Plaintiff
John H. Reaves
Law Offices of John H. Reaves
701 B St., Ste. 1050, San Diego CA 92101
(619) 525-0035

Counsel for Defendants
Edward Shawaker, Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Nelson, Noonan, and King,* JJ: