Section 12 Costs

• Library: Environmental Law 2007 Supp

In United States v. Rohm & Haas Co., 2 F.3d 1265 (3^rd Cir. 1993), cited in the original chapter, the court held that the government cannot recover costs it incurs in overseeing a private-party response action. Rohm was expressly overruled by United States v. E.I. Dupont De Nemours & Co., 432 F.3d 161, 162–63 (3^rd Cir. 2005).

To recover testing costs, a plaintiff has to show only that:

• a release or a threat of a release existed
• the costs were necessary; and
• the costs were consistent with the national contingency plan (NCP)

To be necessary, testing costs must be scientifically valid and of reasonable expense. CERCLA does not impose any requirement that an actual threat or a dangerous level of hazardous substances be present. Johnson v. James Langley Operating Co., 226 F.3d 957, 962 (8^th Cir. 2000).

The original chapter noted that a party who settles with the government may obtain contribution protection as to those clean-up matters covered by the settlement. CERCLA § 113(f)(2) extends contribution protection only to parties who resolve their liability to the United States or a state and not in the context of private party settlement. See 42 U.S.C. § 9613(f)(2) (“A...