South-Western Legal Studies in Business

Cost of Assessment of Toxic Wastes Not Superfund Response Cost
Description Appeals court held that a property owner who incurred costs evaluating the hazardous substances on the property had no cause of action under CERCLA to sue the government to recover such costs, as they are not response costs covered in the statute.
Topic Environmental Law
Key Words CERCLA; Superfund; Cleanup; Costs; Liability
C A S E   S U M M A R Y
Facts Plaintiffs bought land next to a superfund site. They later discovered lead and arsenic on their property and spent $237,273 in an environmental assessment of the site to determine the potential risks to humans who worked on the property. They did not engage in a cleanup of the hazardous materials, but sued the EPA and others under CERCLA. They sought to recover the costs of "responding" to the hazardous substances that they contend migrated from the superfund site to their property. The district court held for defendants. Property owners appealed.
Decision

Affirmed. CERCLA is not a general vehicle for toxic tort claims. The purpose of the law is to clean up hazardous waste sites and impose the costs of such cleanups on the parties responsible for the contamination. To establish a case for a cost recovery action, a plaintiff must prove: 1) the site is a facility; 2) the defendant is a responsible person; 3) the release of a hazardous substance has occurred; and 4) the release caused the plaintiff to incur necessary response costs consistent with the National Contingency Plan (NCP). The costs incurred by plaintiffs were not "necessary" under CERCLA since they were not tied to actual containment or cleanup of contamination. Response costs under CERCLA are payments by responsible parties for cleanup.

Citation Young v. U.S., 394 F.3d 858 (10th Cir., 2005)

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