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Atlantic Richfield Co. v. American Airlines, Inc.

ELR Citation: 27 ELR 20318
Nos. 94-5061 et al., 98 F.3d 564/(10th Cir., 10/16/1996)

The court affirms a district court ruling that a former owner of the Glenn Wynn site in Oklahoma who cleaned up the site pursuant to a consent decree with the U.S. Environmental Protection Agency (EPA) is entitled to contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from other responsible parties for EPA's oversight costs. The court holds that the statutory definitions of remedial action and response unambiguously allow recovery of the costs of government oversight of private-party remedial actions under CERCLA §107(a). Government monitoring or oversight reasonably required to assure that private-party remedial actions protect the public health and welfare and the environment is remedial action as defined in §101(24). Moreover, monitoring or oversight of a private-party remedial action to determine whether the action complies with a consent decree and the provisions of CERCLA is enforcement activity related to a remedial action, and therefore, is a response under §101(25). The court further holds that the express provisions of §104(a), which permit a responsible party to conduct a remedial investigation or feasibility study (RI/FS) only if the party agrees to reimburse the Superfund for costs of government oversight of the RI/FS, do not show that Congress intended to preclude recovery of costs of overseeing private-party remedial actions. Sections 101(24) and (25) clearly and unambiguously provide for recovery of costs of government oversight of private-party remedial action and an RI/FS is a removal action, not a remedial action. And the existence of separate provisions authorizing payment from the Superfund of "governmental response costs" and costs of "appropriate Federal and State oversight of remedial activities" does not establish that costs of governmental oversight of remedial action are not response costs, because CERCLA is inartfully drafted.

The court next reverses the district court ruling that the former site owner was entitled to recover the attorney fees it incurred in negotiating the consent decree with EPA. The court also refuses to remand the case to allow the former owner to prove and recover the amount of attorney fees it incurred in locating potentially responsible parties. The former owner did not raise the issue below and it was not prevented from doing so by the district court's pretrial ruling that although litigation attorney fees were not recoverable, nonlitigation attorney fees necessary to the cleanup were recoverable. Last, the court holds that the former owner failed to show that the district court abused its discretion by ruling that each side should pay one-half of an adjunct settlement judge's fees and expenses.

[A related decision in this litigation is published at 25 ELR 20261].

Counsel for Plaintiff
James M. Harris
Sidley & Austin
555 W. 5th St., 40th Fl., Los Angeles CA 90013
(213) 896-6000

Counsel for Defendants
Claire V. Eagan
Hall, Estill, Hardwick, Gable, Golden & Nelson
320 S. Boston Ave., Ste. 400, Tulsa OK 74103
(918) 594-0400

Before HENRY, SETH,* and BRISCOE, Circuit Judges.