Johnson v. James Langley Operating Co.

No. 99-4036 (226 F.3d 957, 51 ERC 1502) (8th Cir. September 21, 2000)

ELR Digest

The court reverses and remands a district court decision that landowners who sued oil companies in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) suit did not incur response costs in acting to contain a proven release of hazardous substances. The court fist holds that the landowners may recover response costs under CERCLA for ascertaining the danger posed by an actual or threatened release of hazardous substances, even if such testing determines that levels do not warrant cleanup action. CERCLA plainly contemplates liability for site assessment. The statute defines response to include removal actions and removal, in turn, includes such actions as may be necessary to monitor, assess, and evaluate the release or threat of release ofhazardous substances. Moreover, CERCLA's plain language does not incorporate any quantitative threshold into its definition of hazardous substances. Further, the landowners' response costs in this case are not transformed into litigation costs merely because they were incurred after the landowners filed suit. Therefore, the results of site assessments obtained by the landowners are not determinative of their ability to recover the costs of such assessments.

The full text of this decision is available from ELR (13 pp., ELR Order No. L-274).

Counsel for Plaintiffs
Ted Boswell
Boswell, Tucker & Brewster
Bryant Ctr., Bryant AR 72202
(501) 847-3031

Counsel for Defendant
Richard M. Edmonson
Edmonson, Biggs & Mozingo
Deposit Guaranty Bank Bldg.
200 E. Capitol, Ste. 1500, Jackson MS 39205
(601) 944-1900

[31 ELR 20095]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]