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United States v. Chapman
ELR Citation: 28 ELR 21392
Nos. 97-15215, 146 F.3d 1166/46 ERC 1968/(9th Cir., 07/02/1998)
The court holds that the U.S. Environmental Protection Agency (EPA) is entitled to recover Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 response costs, including reasonable attorneys fees, from the owner and operator of a Nevada hazardous waste facility. The court first holds that the evidence in the administrative record presented by EPA established EPA's prima facie case under CERCLA §107(a). The court need not consider the owner's argument that the district court considered evidence outside the administrative record because there is ample evidence in the administrative record to satisfy the government's burden of proof. The court next holds that the site owner failed to create a genuine issue of material fact on the question of whether EPA's response action is inconsistent with the national contingency plan. Before it issued a removal order, EPA concluded, after careful investigation and evaluation, that the site posed a threat, and removal or remedial action was necessary. EPA also adequately documented its response action and the costs incurred. Further, EPA considered all the necessary information in determining a removal action was appropriate. Likewise, EPA considered all the required factors in deciding on a removal action. And because removal activities on the site were not to extend beyond 120 days, EPA was not required to issue a community relations plan.
The court next holds that statutory authority permits the government, which is the prevailing party in the litigation, to recover attornes fees attributable to the litigation as part of its CERCLA §107(a)(4)(A) response costs, CERCLA §107(a)(4)(A) allows for the recovery of all costs of a removal or remedial action. CERCLA §104(b) allows the government to recover costs for all investigations and activities, including legal work. And CERCLA §101(25) specifically states that a response action includes enforcement activities. In addition, there are persuasive policy arguments in favor of awarding the government its attorney fees, and CERCLA is remedial legislation that should be construed liberally to carry out its purpose. However, the court vacates the district court's award of attorney fees and remands the case to the district court for it to award a reasonable amount of attorney fees in favor of the government consistent with Hensley v. Eckerhart, 461 U.S. 424 (1983).
[Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66548.]
Counsel for Plaintiff
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Counsel for Defendant
Catherine W. Johnson
Law Offices of Catherine W. Johnson
Steuart Tower
One Market Pl., Ste. 1600, San Francisco CA 94105
Before Goodwin and Kozinski, JJ.
Tags: Chapman site (Nev.), Consistency with, Fees may be recoverable, Sites