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Recovery of Attorneys Fees in CERCLA Private-Party Cost Recovery Actions: Striking a Balance

August 1993

Citation: 23 ELR 10477

Issue: 8

Author: Kenneth A. Freeling

A sharp conflict among the judicial circuits has emerged concerning whether private parties may recover attorneys fees in cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).1 The issue centers on the meaning of CERCLA § 107(a)(4)(B), which permits private parties to recover "necessary costs of response … consistent with the national contingency plan."2 Specifically, the question is, does the phrase "necessary costs of response" include attorneys fees?

The meaning given § 107(a)(4)(B) and the answer to this question depend, in turn, on the construction of CERCLA's definition of "response." CERCLA § 101(25) defines "response" as "remove, removal, remedy and remedial action; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto."3 The appropriate construction of § 101(25) hinges on a question more simply stated than answered: Is the phrase "enforcement activities," in § 101(25), sufficiently explicit to authorize the award of attorneys fees to a private party that succeeds in obtaining § 107(a)(4)(B) "response" costs?

Mr. Freeling is a partner in the Los Angeles office of New York's Kaye, Scholer, Fierman, Hays & Handler, with a specialty in environmental litigation.

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