Section 4 Response Costs

• Library: Damages 2012

Under CERCLA, the EPA generally proceeds to assess “damages” by way of a cost recovery action filed in accordance with CERCLA § 107, 42 U.S.C. § 9607. PRPs are subject to strict joint and several liability for response costs, which include:

“(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan . . . .”

42 U.S.C. § 9607(a)(4).

In addition, the EPA or the state can recover “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release,” commonly referred to as natural resource damages. See 42 U.S.C. § 9607(a)(4)(C). There is little in the way of caselaw that provides guidance as to how these damages are apportioned. But the damages must be linked to the cost of restoring the environment to its pre-damage state and cannot be grossly disproportionate. SeeCommonwealth of P.R. v. S.S. Zoe Colocotroni, 628 F.2d 652 (1^st Cir. 1980), cert. denied, 450 U.S. 912 (1981); Silva v. Melville, No. 98‑0318A, 12 Mass. L. Rptr. 611, 2001 WL 237526 (Mass. Super. 2001).

Finally, the EPA may recover “the costs of any health assessment or...