Richard Fred Suhrheinrich

“ The NCP requires, among other things, completion of a remedial investigation (“RI”) , feasibility study (“FS”) , and a record of decision (“ROD”) , [1] along with an opportunity for public comment. See 40 C.F.R. pt. 300. In Kentucky, for any risk management-based alternatives for dealing with contamination (i.e., remediation that stops short of removing the contamination) , the Kentucky Division of Waste Management (“the State”) requires a baseline risk assessment (“BRA”) . For soil remediation, the State must approve a soils management plan. ”

“ CERCLA provides a statutory means of determining environmental cleanup liability, which essentially “trumps” any extra-statutory liability in equity. Moreover, “ [t] here can be no indemnity without liability.” Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky.1995) . Therefore, the Authority's claim for equitable indemnification would necessarily hinge on the resolution of the CERCLA claim, because CERCLA provides the sole means of determining liability. Since CERCLA itself provides an adequate remedy for damages, the equitable indemnification claim is superfluous. ”

“ Plaintiff-Appellant Regional Airport Authority of Louisville and Jefferson County (“the Authority”) brought a CERCLA action against Defendants-Appellees LFG, LCC (“LFG”) and Navistar International Transportation Corporation (“Navistar”) (collectively, “Defendants”) for costs the Authority allegedly incurred in the remediation of property previously owned by Defendants. The district court granted Defendants summary judgment on the CERCLA claims, holding that the remediation was unnecessary and that the Authority failed to comply with the NCP. The Authority now appeals from that judgment. ”

“ Congress clearly intended to allow private parties in the Authority's situation to recover response costs from other private parties in Defendants' position, provided certain requirements were satisfied. If the Authority were precluded from recovery as a potentially responsible party, it is difficult to conceive of a private party-plaintiff that would not be similarly precluded. We need not speculate, however. CERCLA provided the Authority with an adequate remedy at law. ”

“ Likewise here, to require Defendants to assume liability for cleanup costs not in excess of normal construction or use costs would be to provide an unwarranted windfall to the Authority.
Contrary to the Authority's position, we do not believe the district court erred in relying on the following passage from G.J. Leasing I:
A theoretical threat is not enough. For response costs to be “necessary”, [sic] plaintiffs must establish that an actual and real public health threat exists prior to initiating a response action. ”

“ We conclude that the Authority failed to comply with this provision of the NCP.
Also, the Authority's preparation of the RI/FS fell short of substantial compliance with section 300.430. The purpose of the RI is “to ... develop [ ] and evaluat [e] effective remedial alternatives.” 40 C.F.R. § 300.430 (d) (1) . The purpose of the FS is “to ensure that appropriate remedial alternatives are developed and evaluated such that relevant information concerning the remedial action options can be presented to a decision-maker and an appropriate remedy selected.” ”

“ Following completion of the west runway, the Authority directed Camp Dresser to prepare a BRA. Camp Dresser delivered its findings in April 1998. The Authority submitted the BRA to the State later that month. In a letter dated almost a year after the runway was operational, the State notified the Authority that both the RI/FS and BRA had been approved. The letter also stated that the State “would support” any effort by the Authority to hold a formal public comment period, although the State noted that it might “not be worthwhile due to the fact that the work ha [d] already begun.” ”

“ The Authority points to public board meetings it held from 1994 until 1998 as having provided opportunities for public comment. However, the minutes from the meetings themselves show that the only items on any agenda related to the remediation of the Site involved approval of contractors to carry out the predetermined actions. [7] The purpose of the NCP's community relations requirements is not to give the public an opportunity to comment on who will conduct the remediation; it is to comment on the underlying remediation itself. ”

“ Co. (G.J. Leasing II) , 54 F.3d 379, 386 (7th Cir.1995) (“The statutory limitation to ‘necessary’ costs of cleaning up is important. Without it there would be no check on the temptation to improve one's property and charge the expense of improvement to someone else.”) . Costs are “necessary” if incurred in response to a threat to human health or the environment. See 42 U.S.C. § 9607 (a) (4) (liability attaches where “a release, or a threatened release ... causes the incurrence of response costs”) ”

“ An RI/FS Work Plan (our “draft” to client on 3/13/97) , 2) a “Soils Management Plan” (to be produced by others) , and 3) an RI/FS Report, which will include preliminary design for groundwater remedy. A baseline risk assessment will not be completed.
In May 1997, shortly after the demolition was completed, the State conditionally approved the Authority's soil management plan.
Eventually, the Authority had Camp Dresser prepare an RI/FS to analyze the Authority's options for groundwater protection and to make specific recommendations. ”

“ Pangilinan, 486 U.S. 875, 883, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988) (“ [I] t is well established that courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.” (internal quotation omitted) ) .
Most courts that have considered this issue have concluded that CERCLA provides an adequate legal remedy for cost-recovery claims. [9] See Truck Components, Inc. ”