Tuesday, January 5, 2010

Raytheon Aircraft Co. v. U.S.

Dec 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-3237. The case involves an appeal from a judgment in favor of the United States in a cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). At trial, the parties disputed the degree to which each is liable for trichloroethylene (TCE) contamination near Hangar 1 and Hangar 4 at Tri-County Public Airport in Herington, Kansas. The United States Army used the airfield from 1942 to 1945. Raytheon Aircraft Company is a successor to Beech Aircraft Corporation, which operated the airfield during the 1950s. According to the Appeals Court, the United States and Raytheon agree they are the only two potentially liable parties.

Raytheon appealed the district court’s finding that it is solely liable for contamination at Hangar 1, as well as the court’s decision to award the United States costs associated with its attempts to list the site on the National Priorities List (NPL). The Appeals Court affirmed the district court’s decision.

The Appeals Court ruled, ". . .this court concludes Raytheon has failed to rebut the presumption that the EPA’s efforts to list the site on the NPL were consistent with the national contingency plan. Because Raytheon has presented no evidence to support a
determination that the EPA’s actions were arbitrary and capricious, the district court’s judgment must be affirmed."

In developing its decision, the Appeals Court reasoned, "Were this court to adopt Raytheon’s view that the decision to abandon a good faith attempt to list a site on the NPL makes that attempt arbitrary and capricious as a matter of law, the EPA would be forced to continue expending efforts and funds in support of a listing in order to recover its costs, even where the results of the ESI [expanded site inspection] itself ultimately reveal the contamination is not serious enough to warrant the listing. Such a result is untenable."

Access the complete opinion (
click here).

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