CA6 (CERCLA): Regional Airport v. LFG,LLC (WD Ky 8/17/2006)

Regional Airport v. LFG,LLC
Western District of Kentucky at Louisville
Environmental Law (CERCLA)
06a0302p.06 8/17/2006

SUHRHEINRICH, Circuit Judge. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-75, permits private party property owners to recover from prior private party property owners certain costs associated with the cleanup of contamination caused by the prior owners, where the cleanup costs were “necessary.” “Necessary” costs means they were incurred in response to a threat to human health or the environment, see 42 U.S.C. § 9607(a)(4)(B), and “consistent” with the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), see 42 U.S.C. § 9607(a). 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 managementbased 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. 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.

The Authority also appeals from two other judgments. The first dismissed the Authority’s common-law equitable indemnification claim on grounds that CERCLA provides an adequate legal remedy. The second overruled the Authority’s objection to the magistrate’s order compelling the production of certain allegedly privileged documents. Included in the latter challenge is the issue of whether attorney opinion work product communicated to testifying experts is protected from disclosure–an issue of first impression in this Circuit. For the reasons that follow, we AFFIRM all judgments.

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