## Facts

- Harold B. Chapman, Jr. owned a five-acre parcel in Palomino Valley, Nevada, where he manufactured metal collars and stored and resold surplus chemicals.
- After a county request, the EPA investigated the site in 1989, using a contractor and multiple inspections and photographs.
- An EPA preliminary assessment found roughly 2,000 chemical containers (many deteriorated) and about 100 large drums of unknown substances stored outdoors, some leaking into soil.
- Testing and observations indicated flammability and risks of fire/explosion, and the leaks posed a risk of groundwater contamination.
- The EPA issued an administrative order directing Chapman to remove or secure hazardous substances based on an imminent and substantial endangerment finding.
- Chapman did not timely comply; the EPA prepared for a removal action and incurred approximately $33,946 in documented planning and contractor mobilization costs before Chapman began belated compliance.
- Chapman refused to reimburse the costs; the United States sued under CERCLA § 107(a) to recover response costs, including attorney’s fees.

## Issues

1. Whether summary judgment on CERCLA § 107(a) liability was improper because the government failed to show a “release” or “threatened release” that caused the incurrence of response costs.
2. Whether the EPA’s response actions were inconsistent with the National Contingency Plan (NCP), barring recovery of response costs.
3. Whether the United States may recover attorney’s fees as “response costs” under CERCLA § 107(a)(4)(A).

## Decision

- The Ninth Circuit affirmed summary judgment on CERCLA liability, holding that the site conditions established at least a “threatened release” causing response costs.
- The court held Chapman failed to show the EPA’s actions were inconsistent with the NCP under the applicable deferential review standard.
- The court held the United States may recover attorney’s fees as part of recoverable response costs under CERCLA § 107(a)(4)(A) when tied to implementing and enforcing the response action.
- The case was remanded for the district court to determine the reasonable amount of recoverable attorney’s fees.

## Legal Principles

- CERCLA § 107(a) cost recovery requires proof of: a facility, a responsible party, a release or threatened release of a hazardous substance, and causation of response costs.
- A “threatened release” may be shown by deteriorated containers, leaks/spills, and concrete risk of harm; proof of completed contamination or off-site migration is not required.
- Government response costs are presumed consistent with the NCP; the defendant bears the burden to show inconsistency, generally under an arbitrary-and-capricious standard.
- Under CERCLA § 107(a)(4)(A), government attorney work closely connected to planning, overseeing, ordering, and enforcing response actions may qualify as recoverable response costs, subject to reasonableness limits.

## Conclusion

The Ninth Circuit held Chapman liable under CERCLA for EPA-incurred response costs based on site conditions constituting a threatened release, rejected an NCP-based defense, and ruled that the United States may recover reasonable response-related attorney’s fees, remanding only to calculate the fee amount.


United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998)