Gould Electronics, Inc. v. Livingston County Road Commission

Petitioner Gould Electronics, Inc. (“Gould”) voluntarily engaged in the assessment and remediation of a groundwater plume of trichloroethylene (“TCE”) contamination and then filed an action against neighboring property owner the Livingston County Road Commission (“the Road Commission”) seeking contribution to Gould’s cleanup costs under the Comprehensive Environmental Response, Cleanup, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. The Road Commission performed no actual “remedial action” or “response” activity. See 42 U.S.C. § 9601(24) & (25). Instead, once identified as potentially liable, the Road Commission fought the state environmental agency’s requests and lobbied for a regulatory determination to support its defenses. Nonetheless, the Road Commission counter-sued Gould, seeking to recover as “necessary costs of response,” 42 U.S.C. § 9607(a), expenses including fees paid to an expert witness and consultant related to her lobbying of the state agency and her testimony in the litigation, as well as other consulting costs generally incurred “in efforts . . . aimed at exonerating [the Road Commission] from liability as opposed to mitigating the spread of contamination.” App. 130. The trial court allowed the Road Commission to recover over $1.2 million in those costs. The Sixth Circuit affirmed. That ruling presents three questions for this Court’s review: 1. Are fees paid to an expert witness “necessary costs of response” that can be recovered under Section 107(a) of CERCLA?