ELR Citation: ELR 20281
No(s). 88-2860 (5th Cir. Dec 8, 1989)

The court holds that the buyer of a phosphate fertilizer plant has established a prima facie case for liability in a private Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action against the seller. The court holds that absent potential abuse, which may subject some defendants to harassing litigation, no quantitative measure of a hazardous substance release is necessary at the liability stage. Rather, the court finds that the standard is whether a release or threatened release of a hazardous substance has caused the incurrence of response costs. The court holds that the buyer justifiably incurred response costs. The buyer showed that the radioactive emissions exceeded applicable federal standards. The buyer's security measures, including fences and guards to prevent access, and site investigation, are acceptable response costs within CERCLA.

Turning to damages, the court holds that only the response costs necessary and consistent with the National Contingency Plan are recoverable. Because the lower court considered only one "legally applicable or relevant and appropriate requirement" in assessing the proper scope of the cleanup efforts, the court remands to the lower court to determine if no other more appropriate standard exists. Moreover, since the harm is indivisible, after deciding the appropriate remedial action the lower court will have to use equitable factors to determine each party's share of the costs.

Counsel for Plaintiff-Appellant
Edward Warren
Kirkland & Ellis
655 15th St. NW, Ste. 1200, Washington DC 20005
(202) 879-5000

Counsel for Defendant-Appellee
Thomas W. Hill
Emens, Hurd, Kegler & Ritter
Capitol Sq., 65 E. State St., Columbus OH 43215
(614) 462-5400

Before BROWN, REAVLEY and HIGGINBOTHAM, Circuit Judges.