## Facts

- The Regional Airport Authority of Louisville and Jefferson County (the Authority) expanded the Louisville International Airport onto property formerly used as an industrial facility owned/operated by LFG, LLC and Navistar International Transportation Corp.
- The property had soil and groundwater contamination, including solvents and other hazardous substances.
- The Authority undertook remedial activities while moving forward with runway construction.
- The Authority filed a CERCLA § 107(a) cost-recovery action seeking reimbursement from the prior owners for response costs it claimed were “necessary” and “consistent with” the National Contingency Plan (NCP).
- The Authority began significant work before completing an NCP-style remedial investigation/feasibility study (RI/FS), before issuing a record of decision (ROD), and before meaningful public participation in remedy selection.
- After an RI/FS was prepared, the Authority did not follow its recommendations and instead pursued a risk-based/containment approach that left some contamination in place.
- Under Kentucky requirements for a risk-based remedy, the Authority needed a baseline risk assessment (BRA) and state-approved plans; the Authority completed runway construction before completing the BRA.
- The Kentucky agency later approved the RI/FS and BRA after many key choices and physical work had already occurred.

## Issues

1. Whether the Authority’s claimed expenditures were “necessary costs of response” under CERCLA § 107(a)(4)(B), meaning incurred in response to a threat to human health or the environment.
2. Whether the Authority’s response action was “consistent with the NCP,” i.e., in substantial compliance with NCP procedures such as RI/FS completion, ROD issuance, and public participation before remedy implementation.

## Decision

- The Sixth Circuit affirmed summary judgment for LFG and Navistar.
- The court held the Authority failed to show its costs were “necessary” response costs under CERCLA.
- The court held the Authority also failed to show substantial compliance with the NCP, so its actions were not “consistent with the NCP.”
- Because the Authority bore the burden on both necessity and NCP consistency, failure on either element defeated cost recovery; the court found failure on both.

## Legal Principles

- A private plaintiff may recover CERCLA response costs only if the costs are “necessary” and “consistent with the NCP.”
- “Necessary” costs require a demonstrated nexus to addressing an actual or threatened release posing a threat to human health or the environment; development- or construction-driven expenditures do not qualify merely because contamination exists.
- NCP consistency for private remedial actions generally requires substantial compliance with core procedural steps, including appropriate investigation and analysis (RI/FS), documented remedy selection (commonly via an ROD or comparable decision document), and an opportunity for public comment before committing to and implementing the remedy.
- Implementing work before completing the technical studies and public-participation steps, and materially deviating from the RI/FS-recommended remedy, supports a finding of noncompliance.
- Subsequent regulatory approval obtained after major work and decisions does not necessarily cure earlier departures from NCP sequencing and process.

## Conclusion

The court denied private-party CERCLA cost recovery because the Authority’s expenditures were not shown to be necessary to address a health or environmental threat and because the Authority’s out-of-sequence, construction-driven response action did not substantially comply with NCP procedures requiring investigation, documented remedy selection, and public participation before implementation.


Reg’l Airport Auth. of Louisville & Jefferson Cnty. v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006)