• U.S. District Court
  • 3:12cv443
  • Feb 21 2014 (Date Decided)
  • Bryant, J.

Although Section 107 of CERCLA "does not provide for the award of private litigants’ attorney’s fees associated with bringing a cost recovery action," a plaintiff may recover for attorney work to identify potentially responsible parties. Solvents Recovery Service of Southington, Conn. allegedly released hazardous waste into the environment between 1955 and 1991. SRSNE Site Group, which used Solvents Recovery’s services, agreed to reimburse the federal and state governments and the Southington Water District for damages to the environment and clean-up costs. SRSNE requested court-ordered contribution and reimbursement from other responsible parties, pursuant to CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, 42 United States Code §9601, plus attorney fees and costs for litigation efforts. Defendant Richard Tanning Co., which allegedly disposed of 66,534 gallons of hazardous substances at the site in the 1980s, filed a motion to dismiss the request for attorney fees, which the court construed as a motion to strike. Richard Tanning claimed that private parties generally may not recover attorney fees and litigation expenses under the American Rule, which requires that each party pay their own attorney fees, and CERCLA. In Key Tronic Corp. v. United States, a 1994 decision, the U.S. Supreme Court held that although Section 107 of CERCLA "does not provide for the award of private litigants’ attorney’s fees associated with bringing a cost recovery action," the plaintiffs could recover for the cost of their attorneys’ work to identify potentially responsible parties, without violating the American Rule, "because they are not incurred in pursuing litigation." The Supreme Court added, "Tracking down other responsible solvent polluters increases the probability that a cleanup will be effective. . . . These kinds of activities are recoverable costs of response clearly distinguishable from litigation expenses." The plaintiff may be able to prove that certain attorney fees are closely connected to the actual cleanup of pollution, and the court denied Richard Tanning Co.’s motion to strike the request for attorney fees.

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