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The aftermath of Key Tronic: implications for attorneys' fee awards.

I.   INTRODUCTION                                       1515
II.  PRIVATE PARTY RESPONSE ACTIONS UNDER

     SECTION 107 OF CERCLA                              1517


     A. Private Party Response Actions                  1517


     B. Elements of a CERCLA Recovery Suit              1518

        1. Defendant Is a Responsible Party
           Under Section 107(a)(1)-(4)                  1519
        2. There Has Been a Release or
           Threatened Release of a
           Hazardous Substance                          1520
        3. Plaintiff Has Incurred Response
           Costs                                        1521
        4. Response Costs Are Consistent
           with the National Contingency Plan           1523

     C. Summary                                         1525

III. BASIC ARGUMENTS FOR AND AGAINST

     ATTORNEY'S FEES UNDER SECTION 107                  1525


     A. Introduction: Statutory Language                1525


     B. Prior Decisions: Split on the Issue of

        Awarding Attorney's Fees                        1527

     C. Argument For Awarding Attorney's Fees           1529

        1. "Enforcement Activities" Include
           Attorney's Fees Incurred in
           Recovering Removal and Remedial Costs        1529
        2. Policy Objectives Support
           Awarding Attorney's Fees                     1531

     D. Argument Against Awarding Attorney's Fees       1533

        1. Legislative History Supports Denial
           of Attorney's Fees                           1533
        2. Attorney's Fees Are Not Explicitly
           Provided for in Private Party
           Response Actions                             1535
IV.  KEY TRONIC CORP. V. UNITED STATES:

     ATTORNEY'S FEES ARE NOT RECOVERABLE IN


     PRIVATE PARTY RESPONSE ACTIONS                     1536


     A. Litigation Attorney's Fees Are Barred           1538


     B. Nonlitigation Attorneys' Fees

        Are Recoverable                                 1540
V.   IMPLICATIONS OF KEY TRONIC                         1541

     A. Critique                                        1541

        1. A Private Party Response Action
           Is an Implied Cause of Action                1542
        2. SARA Added Two Express Provisions
           for Attorney's Fees                          1548
        3. The Phrase "Enforcement Activities"
           Does Not Include Attorney's Fees             1550
        4. The Award of Nonlitigation Fees
           Furthers the Cleanup Objectives
           of CERCLA                                    1555

     B. Government Attorney's Fees Under

        Section 107                                     1559
        1. Is the Section 107 Government Response
           Action an Express Cause of Action?           1561
        2. What Impact Do the Two SARA
           Amendments (Sections 310(f) and
           106(b)(2)(E)) Have on Government
           Response Actions?                            1562
        3. It Would Stretch the Plain Meaning of
           the Phrase "Enforcement Activities"
           Too Far to Determine that Enforcement
           Activities Include Attorney's Fees           1565

     C. The American Rule: Where Does Key Tronic

        Leave Us?                                       1566
        1. Implied Rights of Action Do Not
           Merit Attorney's Fee Awards                  1567
        2. Common Benefit or Fund Exception
           Does Not Apply to Private Party
           Response Actions                             1569
        3. The Magic Phrase "Attorney's Fees"
           Should Be Used by Congress                   1570
VI.  SUMMARY                                            1571


I. INTRODUCTION

In Key Tronic Corp. v. United States,(1) the Supreme Court held that attorney's fees incurred from litigation of private party response actions under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(2) are not recoverable.(3) Nonlitigation attorney's fees, on the other hand, may still be recoverable. Key Tronic did not determine the ability of the government to recover fees under section 107, but under the Court's analysis of the American rule, the decision could nevertheless affect the determination of government attorney's fees and render them unrecoverable. Finally, the Key Tronic decision significantly revised the boundaries of the American rule and makes an explicit legislative directive necessary for the recovery of attorney's fees.

Litigation-related attorney's fees are no longer recoverable in CERCLA private party response actions. On June 6, 1994, the United States Supreme Court in a 6-3 decision held that there is no explicit congressional authorization allowing attorney's fees under CERCLA section 107, and, consequently, the American rule of attorney's fees as set forth in Alyeska Pipeline Service Company v. Wilderness Society(4) and Runyon v. McCrary(5) prohibits the award of attorney's fees.(6) The result of this decision is that a private party forced to remediate contamination cannot recover attorney's fees when seeking to recover its response costs expended in remediation from parties responsible for the contamination.(7)

The Supreme Court denied private party attorney's fees for three reasons. First, the private party response action is an implied cause of action and thus receives suspect treatment under Alyeska.(8) Consequently, it would be "unusual if not unprecedented" for the explicitness required by Alyeska to be fulfilled.(9) Second, Congress's addition of two CERCLA provisions explicitly allowing recovery of attorney's fees, section 310(f) of the citizen suit provision(10) and section 106(b)(2)(E)(11) of the Attorney General abatement action, indicate congressional intent not to allow attorney's fees in private party response actions because there was no corresponding provision for section 107.(12) Third, "it would stretch the plain terms of the phrase 'enforcement activities' too far to construe it as encompassing" attorney's fee awards in private party response actions.(13)

The Supreme Court provided a new standard for determining when nonlitigation attorney's fees are recoverable in private party response actions. It allowed nonlitigation attorney's fees expended in identifying other potentially responsible parties, but rejected fees incurred by Key Tronic in negotiating a consent decree with the Environmental Protection Agency (EPA). To be recoverable, attorney's fees incurred must be for nonlitigation purposes, and the work performed must significantly benefit the cleanup, separate and distinct from reallocation of costs or protection of the private party's interest as a defendant.(14)

Key Tronic's distinction between litigation and nonlitigation attorney's fees will greatly affect not only private party response actions but also government response actions under section 107. Key Tronic's clear holding explicitly bars attorney's fee awards in private actions. The not-so-clear implication is that extending Key Tronic's analysis will likely prevent government attorney fee awards.

Resolution of future nonlitigation attorney fee awards in private party response actions will be evaluated pursuant to the key Tronic analysis. Moreover, the Key Tronic analysis revises the scope of the American rule. If a cause of action is deemed to be only implied, it will be virtually impossible to meet the explicitness required by the American rule. It appears that Congress must use the magic words "attoreny's fees," or reference a provision that does, to overcome the American rule.

After reviewing the elements of the private party response action, this article examines the basic arguments for and against awarding attorney's fees in private party response actions in order to enable a thorough analysis of the Key Tronic opinion. It then discusses and critiques the Key Tronic opinion, and finally, it presents Key Tronic's implications on government attorney's fees under section 107 and on the American rule in general.

II. PRIVATE PARTY RESPONSE ACTIONS UNDER SECTION 107 OF CERCLA

A. Private Party Response Actions

CERCLA section 107 establishes a private right of action for recovery of response costs.(15) Private party response actions are litigation efforts taken by non-government actors to recover costs incurred in removing or remedying releases or threatened releases of hazardous waste. The party seeks contribution from other persons who may be statutorily liable.(16) The suits include, for example, actions by a current owner of contaminated property against the former owner responsible for the property's contamination after the EPA has forced the current owner to remediate the site, actions by one responsible party against other responsible parties after the EPA has forced the responsible party to remediate a contaminated site such as a landfill, and actions by landowners against adjoining landowners for costs incurred in remediating and preventing the migration of contamination onto their property.

A good example of a private party response action is found in General Electric Co. v. Litton Industrial Automation Systems.(17) In this case, General Electric Company (GE) brought an action against Litton Industrial Automation Systems, Inc. (Litton) for response costs incurred by GE in remediating contamination caused by Litton. In 1970, GE purchased a nineteen-acre tract of land from Litton in Springfield, Missouri. After discovering contamination, the Missouri Department of Natural Resources required GE, the current owner of the site, to clean up the contaminated land. Investigation revealed that the site had been contaminated with cyanide-based electroplating wastes, sludge, and other pollutants during the operation of a typewriter plant on the property between 1959 and 1962 by Litton's predecessor corporation. GE incurred over $940,000 in remediating the site. Subsequently, it sued Litton in a private party response action to recover its response costs as well as its attorney's fees and expenses which were in excess of $419,000.

The General Electric case, decided prior to the Supreme Court's decision in Key Tronic Corp., underscores the reason why courts have been divided on the issue of attorney's fees in private party response actions. If the plaintiff is not allowed to recover attorney's fees, it will often be forced to bear a substantial expense in forcing the responsible party to reimburse it for remediating the responsible party's contamination. It is this inequity that has been most problematic for the courts.

B. Elements of a CERCLA Recovery Suit

The authority for the private party response action is found in section 107(a)(4)(B), which provides that a private party may recover "necessary costs of response" from a responsible party if such response costs are consistent with the national contingency plan.(18) The elements of a CERCLA section 107 private party response action are presented to better understand the Key Tronic decision and its ramifications. To establish a prima facie case for response cost, the plaintiff must show: 1) the defendant is a responsible party; 2) there has been a release or threatened release of a hazardous substance at a facility;(19) 3) the plaintiff incurred response costs in responding to the release or threatened release; and 4) the response costs conform to the national contingency plan.(20) Each element is examined briefly below.

1. Defendant Is a Responsible Party Under Section 107(a)(1)-(4)

A plaintiff must first prove that the defendant is a responsible party. CERCLA enumerates four categories of parties as liable for threatened or actual releases of hazardous substances. Responsible parties are: 1) current owners and operators of facilities;(21) 2) owners and operators of facilities at the time hazardous waste is disposed; 3) generators of hazardous waste who dispose of hazardous waste at the facility; and 4) transporters of hazardous waste to the facility.(22)

2. There Has Been a Release or Threatened Release of a Hazardous

Substance

Second, the plaintiff must prove that there has been a release or threatened release of a hazardous substance.(23) "Release" is broadly defined under CERCLA to include "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment."(24) The quantity released is irrelevant under CERCLA, so even minimal concentrations of a hazardous substance may subject a responsible party to CERCLA liability.(25) Furthermore, CERCLA does not require a plaintiff to show that a particular defendant actually caused the release, but merely that a release occurred and that the defendant is a liable party under CERCLA.(26)

The term "hazardous substance" is also very broad. It encompasses any substance designated by the EPA as hazardous or toxic under section 311(b)(2)(A) of the Clean Water Act (CWA),(27) any substance identified or listed under section 3001 of the Resource Conservation and Recovery Act (RCRA),(28) any toxic pollutant listed under section 307(A) of the CWA,(29) any hazardous air pollutant under section 112 of the Clean Air Act (CAA)(30) and any imminently hazardous chemical substance identified in section seven of the Toxic Substances Control Act (TSCA).(31) CERCLA specifically excludes petroleum and natural gas.(32)

3. Plaintiff Has Incurred Response Costs

Plaintiffs must incur "necessary costs of response" to satisfy the third element of the prima facie case.(33) Although CERCLA does not define the terms "necessary costs of response" or "response costs," CERCLA does define the terms "respond" and "response." "'Respond' or 'response' means 'remove, removal, remedy, and remedial action'; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto."(34) Response costs, therefore, include removal and remedial actions and related enforcement activities.

The terms "removal actions" and "remedial actions" are further defined in CERCLA. Removal costs are those costs incurred in response to an immediate threat to public health or the environment.(35) Removal actions are short term measures necessary to prevent, minimize or mitigate damage to the environment resulting from a release or a threatened release of a hazardous substance.(36) Remedial actions, on the other hand, are considered to be long term or permanent actions taken to remedy contamination.(37) Remedial actions are consistent with a permanent remedy.(38) Remedial actions may be taken instead of or in addition to removal actions in the event that there is a release or threatened release of a hazardous substance into the environment, to minimize or prevent the migration of hazardous substances and obviate substantial danger to present or future public health, welfare, or environment.(39)

CERCLA does not define the term "enforcement activities related thereto." However, in addition to the specific actions identified under the definitions of removal and remedial actions, courts have generally found the following costs to be recoverable as response costs: 1) preliminary investigation, assessment and evaluation of hazardous substances present at the site;(40) 2) cleanup/removal and remedial activities including actual cleanup costs and costs associated with cleanup;(41) and 3) health and welfare measures including alternative water supplies,(42) relocating residences and businesses,(43) and cleanup monitoring.(44) Supervisory costs may be recoverable,(45) but economic costs for loss of property or diminution in value are generally not recoverable.(46) Medical monitoring and testing are usually only recoverable if they relate to public health.(47) Punitive damages are not recoverable in private party response actions.(48)

4. Response Costs Are Consistent with the National Contingency Plan

Response costs incurred must be consistent with the national contingency plan (NCP).(49) However, consistency is interpreted differently depending on the procedural posture of the case. A court confronted with the threshold question of liability can usually reach a decision without requiring the plaintiff to show consistency with the NCP,(50) as long as consistency is alleged in the plaintiff's complaint. If the response costs sought are for initial investigation and monitoring expenses incurred in determining the degree of contamination, compliance with the NCP may not be a precondition to recovery of the expenses.(51) On the other hand, consistency must be demonstrated if the claim is for damages as response costs(52) or where the plaintiff has incurred substantial costs.(53)

The particular NCP that applies is the one that was in effect at the time the response costs were incurred.(54) The 1990 NCP allows a private party response action to be considered consistent if, when evaluated as a whole, it is in substantial compliance with the NCP.(55) While strict compliance is no longer required, the revised NCP will apply to the extent that it does not impose new and onerous burdens.

C. Summary

Response costs are defined to include removal and remedial action and related enforcement activities. Enforcement activities, however, are not defined. Likewise, CERCLA's language does not definitively provide for recovery of attorney's fees by the private party plaintiff prosecuting an action against a responsible party to recover its costs in responding to contamination caused by the responsible party.

III. BASIC ARGUMENTS FOR AND AGAINST ATTORNEY'S FEES UNDER SECTION 107

To better understand the Supreme Court's holding in Key Tronic and its subsequent implications, this section presents the basic arguments for and against awarding attorney's fees in private party response actions and examines how different courts have viewed the arguments.

A. Introduction: Statutory Language

Within the last several years, district courts, circuit courts of appeal, and the Supreme Court have all addressed the question of whether or not a private party can recover attorney's fees from a responsible party when suing the responsible party for response costs under CERCLA section 107. Although the courts have divided over the outcome, each begins determining whether attorney's fees are recoverable by examining the statutory language. CERCLA establishes a private right of action for recovery of response costs under section 107(a)(1)-(4)(B).(56) Section 107 of CERCLA provides that responsible parties are liable for "any ... necessary costs of response incurred by any other person consistent with the national contingency plan."(57) After concluding that CERCLA allows a private party response action and that a private party may recover its necessary costs of response, the next question is whether attorney's fees qualify as necessary costs of response.

CERCLA does not define the term "necessary cost of response," but it does define "respond" and "response." The terms "respond" and "response" are defined in CERCLA to mean "remove, removal, remedy, and remedial action; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto."(58) Removal and remedial actions are defined, but attorney's fees are not mentioned.(59)

The term "enforcement activities" is not defined in CERCLA, but the plain meaning could be that enforcement activities include the costs of compelling responsible parties to pay for removal and remedial actions pursuant to CERCLA's liability scheme. Private parties are given authority to recover the often substantial costs of removal and remedial actions from responsible parties. On the other hand, it is ambiguous whether response costs include the award of attorney's fees incurred by a private party plaintiff in compelling a responsible party to reimburse it for its response costs. If attorney's fees are not recoverable, the plaintiff may have to bear substantial non-recoverable litigation costs in forcing the responsible party to pay response costs expended by the plaintiff in remediating the responsible party's contamination.(60)

B. Prior Decisions: Split on the Issue of Awarding Attorney's Fees

Before Key Tronic, courts sharply divided on the question of CERCLA's authority to award attorney's fees in private party response actions. District courts in the Fourth,(61) Sixth,(62) Seventh,(63) Eighth,(64) Ninth,(65) and Tenth(66) Circuits awarded attorney's fees to successful plaintiffs in private party response actions. The Sixth(67) and Eighth(68) Circuit Courts of Appeal also held that attorney's fees are awardable in private party response actions. On the other hand, district courts in the Second,(69) Third,(70) Sixth,(71) Ninth,(72) and Tenth(73) Circuits and courts of appeal in the First,(74) Ninth,(75) and Tenth(76) Circuits held that attorney's fees are not recoverable.

In considering attorney's fees, courts have dealt with two key principles: policy implications of awarding attorney's fees and the American rule. The policy implications for awarding attorney's fees weigh in favor of allowing recovery. CERCLA is a remedial statute designed to protect and preserve public health and the environment. Two paramount objectives of CERCLA are the prompt cleanup of contaminated sites and the imposition of response costs on responsible parties.(77) Given that attorney's fees in private party response actions are often relatively large, the plaintiff may have little incentive to initiate cleanup of contaminated property or to attempt to hold a responsible party liable for its share of the cost if attorney's fees are not recoverable. Moreover, the failure to award attorney's fees forces the party initiating the cleanup of the site or preventing the migration of contamination to bear a share of the cost disproportionate to the share of that party's liability and gives other responsible parties an economic incentive not to participate in the remediation.

On the other hand, the American rule (the general rule regarding statutory recovery of attorney's fees) prohibits recovery of attorney's fees unless a statute specifically authorizes them.(78) Under a strict application of the American rule, CERCLA must expressly state that private parties can recover attorney's fees in response actions.(79) Whether attorney's fees are recoverable depends on the judicial determination of whether there is specific statutory authority under CERCLA to provide such recovery.

C. Argument For Awarding Attorney's Fees

The fundamental arguments for awarding attorney's fees are that the statutory term "enforcement activities" includes attorney's fees incurred in bringing a private party response action, and policy implications justify awarding attorney's fees in private party response actions.

1. "Enforcement Activities" Include Attorney's Fees Incurred in Recovering Removal and Remedial Costs

The argument supporting attorney's fees is based on the contention that private party response actions are included as enforcement activities under the definition of response actions. Because the plaintiff in the private party response action can recover its necessary costs of response and the term "response" includes removal and remedial actions as well as related enforcement activities, the plaintiff can recover its costs of enforcement activities. Attorney's fees are arguably recoverable as costs of enforcement activities.

Even if there is not explicit congressional authorization stating that attorney's fees are awardable, courts have held that "CERCLA authorizes, with a sufficient degree of explicitness, the recovery by private parties of attorney fees and expenses."(80) One court reasoned that "[t]he term 'enforcement activities' may not be commonly used in fee-shifting statutes, but its meaning is not hard to divine .... Congress has explicitly authorized fee-shifting by explicitly authorizing a party's recovery of the cost of 'enforcement activities.'"(81) Althought the term "enforcement activities" is not the most common way of authorizing fee recovery, the court concluded that Congress explicitly authorized private party attorney's fees by adding such language.(82)

This analysis emphasizes the principle of statutory construction that the primary rule of implementing legislative intent is to "ascertain and give effect to the plain meaning of the language used."(83) Statutes should not be interpreted in ways that would "render some words superfluous, defy common sense, or lead to mischief or absurdity."(84) To avoid the superfluous meaning of "enforcement activities," courts therefore conclude that enforcement activities are activities to compel a responsible party to comply with removal and remedial actions mandated by CERCLA and the liability scheme of section 107.(85) Although the phrase "enforcement activities" does not include the magic words "attorney's fees," attorney's fees are inherently incurred in recovering removal and remedial action costs from responsible parties.(86)

Because response actions include related enforcement activities, the statutory language is sufficient to allow the award of attorney's fees. In a leading case, the Eighth Circuit Court of Appeals reasoned that a private party response action is an enforcement activity to force the responsible party to reimburse the plaintiff for cost incurred in remediating a contaminated site: "[a]ttorney fees and expenses necessarily are incurred in this kind of enforcement activity and it would strain the statutory language to the breaking point to read them out of the 'necessary costs' that section 9607(a)(4)(B) allows private parties to recover."(87)

Furthermore, at least one court has indicated that because the term "enforcement activities" provides for and supports government attorney's fee recovery in government response actions under section 107, it also supports fee recovery in private party response actions.(88) Because the term "enforcement activities" is within the general definition of the term "response," it applies to both government and private party response actions. If enforcement activities enable government attorney's fee awards, they should likewise allow private party attorney's fee awards.(89)

In conclusion, CERCLA's statutory language is arguably explicit enough to authorize recovery of attorney's fees. Unlike situations where there is no statutory language, the private party under CERCLA can point to a specific statutory provision which entitles private parties to recover necessary response costs.(90) Response costs, as defined, explicitly include enforcement activities.(91) Because enforcement activities must mean something other than removal or remedial action and because attorney's fees are necessarily incurred in enforcement activities, enforcement activities should include the legal expenses of forcing a responsible party to pay for response costs pursuant to section 107.

2. Policy Objectives Support Awarding Attorney's Fees

The policy implications and purposes of CERCLA also support awarding attorney's fees. Two of CERCLA's predominate purposes are the prompt cleanup of hazardous waste sites and the imposition of all cleanup cost on the responsible party.(92) Congress intended to make responsible parties bear the cost and responsibility for remediating contamination.(93) If a private party cannot recover attorney's fees, prompt cleanup and imposition of cleanup costs on the responsible party is undermined. Likewise, if plaintiffs must pay their own attorney's fees, a responsible party is not held responsible for all of the cleanup cost. Given that litigation costs are often significant, the failure to award attorney's fees may act as a disincentive to remediate a contaminated site.(94)

This justification emphasizes that statutory interpretation should not be conducted in a vacuum, but must consider legislative intent. In deciding that the language of "enforcement activities" includes attorney's fees, the District Court for the Eastern District of Virginia stated:

[T]he court simply recognizes that thorough analysis of a statute includes consideration of its purposes, if one has been clearly articulated. In so far as the overriding goal of a piece of legislation inevitably provides clues regarding construction of its particular terms, a court would be remiss in casting it aside as irrelevant to the interpretative process. A court should utilize all of the interpretative tools at its disposal in engaging in statutory analysis. While the court is well aware of the time-honored principal that statutory interpretation begins with the plain meaning of the terms of the statute at issue, the split in authority on this question illustrates that plain meaning guidance alone might not always be sufficient to permit meaningful statutory analysis.(95)

Whereas statutory interpretation begins with the plain meaning of the phrase, when the plain meaning is ambiguous courts must look to congressional purposes. The ambiguity of the term "enforcement activities" is evidenced by the decisive split among appellate and district courts. If the term "enforcement activities" is ambiguous, courts should consider that CERCLA's purpose is to obtain prompt cleanup of contaminated sites and to impose cleanup costs on the responsible party.

D. Argument Against Awarding Attorney's Fees

Courts that held attorney's fees are not recoverable generally relied on two basic arguments. First, the legislative history underlying the amendment of "respond" or "response" to include "enforcement activities related thereto" emphasizes the government's ability to recover enforcement costs, not private parties' ability to recover attorney's fees, and second, CERCLA does not explicitly provide for private party attorney's fees.

1. Legislative History Supports Denial of Attorney's Fees

Courts that deny attorney's fees often underscore legislative history. The definition of "response cost" was amended in 1986 to include enforcement activities related to removal and remedial action.(96) The earlier definition allowed recovery only of the actual cost of cleanup, and not enforcement.(97)

In the slight legislative history concerning the addition of the "enforcement activities related thereto" language, the only reference is by a committee report that states, "the change will confirm the EPA's authority to recover costs for enforcement actions taken against responsible parties."(98) One court concluded that when Congress expanded the definition of response costs to include enforcement costs, it intended to make clear that the EPA could recover costs for enforcement actions, but did not intend for private parties to obtain attorney's fees in private party response actions.(99) Plaintiffs have attempted to bypass this contention by arguing that the subsequent conference committee report omitted the explicit reference to the EPA found in the Energy and Commerce Committee's comments.(100)

The justification used for denying attorney's fees emphasizes that only the government may bring enforcement actions under section 107. Although private parties may recover their own response cost under section 107, they cannot use section 107 to force other private parties to clean up contaminated sites.(101) The government is specifically allowed to bring an enforcement action under section 106, recover response costs under section 107, and recover attorney's fees pursuant to section 104. Under section 107, the government can recover attorney's fees because it is explicitly provided for in section 104(b).(102) Section 104(b) does not apply to private parties, and therefore, private parties cannot recover attorney's fees in a section 107 action.(103)

The legislative scheme of CERCLA reinforces the denial of private party attorney's fees under section 107. Although a private party may not bring an enforcement action to enforce CERCLA's cleanup provisions against another private party under section 107, a private party has explicit authority to force responsible parties to clean up contaminated sites under section 310(a)(1). Under section 310(a)(1), private parties may bring citizen suits against other private parties for violation of CERCLA's standards, regulations, conditions, requirements, or orders.(104) The federal district court under section 310(c) has the authority to enforce compliance with CERCLA, order injunctive relief, and award the substantially prevailing plaintiff attorney's fees.(105) Based on this analysis, private parties may bring enforcement actions only in section 310 citizen suit actions, not under section 107.

In conclusion, courts that rejected private party attorney's fees emphasized that the legislative history of SARA supports the government's recovery of attorney's fees under section 107. Private parties are only authorized to enforce compliance under other provisions of CERCLA, not under section 107; therefore, they cannot recover attorney's fees.

2. Attorney's Fees Are Not Explicitly Provided for in Private Party

Response Actions

Courts that denied attorney's fees also emphasized the American rule of attorney's fees, which states that absent explicit congressional authorization, attorney's fees are not recoverable as a cost of litigation.(106) Congressional policy objectives are insufficient to overcome the need for explicit language. In Alyeska Pipeline Co. v. Wilderness Society,(107) the Supreme Court stated in denying attorney's fees:

[T]he encouragement of private action to implement public policy has been viewed as desirable in a variety of circumstances. But the rule followed in our courts with respect to attorneys' fees has survived. It is deeply rooted in our history and in congressional policy; and it is not for us to invade the legislature's province by redistributing litigation costs ....(108)

Section 107 of CERCLA does not state explicitly that attorney's fees are recoverable in private party response actions.

Prior to Key Tronic, lower courts held that CERCLA explicitly allowed attorney's fees in section 104(109) and section 310,(110) but not in section 107.(111) This contrast between the various sections indicates Congress's intent to not allow fees under section 107.(112) Courts cannot create a right to recover attorney's fees where Congress has not expressly stated that such a right exists.(113)

The analysis again relies on the SARA amendments in denying attorney's fees for lack of explicit congressional authorization. SARA was a comprehensive overhaul of CERCLA; however, it did not amend section 107 to specifically allow private parties to recover attorney's fees.(114) Congress could have easily amended SARA to allow private parties to recover attorney's fees, but chose not to do so.

Even though policy implications support attorney fee awards, policy implications are viewed as insufficient to overcome the lack of explicit congressional authorization. Courts are not authorized to impose attorney's fees just because it is consistent with a statutory scheme or statutory purpose.(115)

IV. KEY TRONIC CORP. V. UNITED STATES: ATTORNEY'S FEES ARE NOT

RECOVERABLE IN PRIVATE PARTY RESPONSE ACTIONS

In the decisive case of Key Tronic Corp. v. United States,(116) the United States Supreme Court held that attorney's fees are not recoverable in private party response actions. The Supreme Court relied on three grounds for denying attorney's fees as litigation costs: 1) private party response actions are not explicitly provided for in section 107; 2) the SARA amendments added two express provisions for attorney's fees (sections 9659(f) and 9606(b)(2)(E)), but did not provide similar language under section 107; and 3) it would stretch the plain meaning of the phrase "enforcement activities" too far to determine that enforcement activities include attorney's fees. Although attorney's fees incurred in litigating a section 107 private party response action are not recoverable, the Supreme Court held that nonlitigation attorney's fees expended in identifying other potentially responsible parties (PRPs) are recoverable.(117)

The Key Tronic case arose out of the cleanup of the Colbert Landfill in eastern Washington. In 1980, a Washington Department of Ecology (WDOE) investigation revealed contamination of the water supply in the area surrounding the landfill. The cleanup began, and lawsuits regarding the liability for cleanup costs soon followed. In the settlement of one lawsuit, Key Tronic agreed with WDOE and the EPA to contribute $4.2 million dollars to the EPA cleanup fund. In another lawsuit, the United States Air Force (Air Force) agreed pursuant to a de minimis settlement and administrative consent order to contribute $1.45 million dollars to the EPA cleanup fund. In return, the consent order released the Air Force from further liability pursuant to CERCLA section 122(g)(5).(118) Subsequently, Key Tronic sued the Air Force and other PRPs for contribution under section 113(f) to recover part of the $4.2 million dollar settlement with the EPA. Key Tronic sued for an additional $1.2 million dollars under section 107 for reimbursement of response costs incurred prior to its settlement with the EPA and for costs outside the scope of the Air Force's consent order. Key Tronic's allegations for response costs included litigation attorney's fees.(119)

Key Tronic ultimately conceded that its contribution action was barred under section 122(g)(5), but continued to pursue its action for response costs. Through a consent decree, the Air Force agreed to pay Key Tronic $185,000 as contribution for response costs Key Tronic incurred prior to entering into the consent decree with the EPA. However, Key Tronic and the Air Force were unable to agree whether the Air Force was liable for attorney's fees and certain other response costs.(120) The District Court for the Eastern District of Washington found on behalf of Key Tronic and awarded it response costs, including attorney's fees.(121) The district court reasoned that the language in the definition of the terms "respond" and "response" regarding enforcement activities included attorney's fees incurred pursuant to a section 107 private party response action.(122) The Ninth Circuit Court of Appeals reversed and denied recovery because Congress did not explicitly authorize attorney fee awards in private party response actions.(123) The Supreme Court reversed in part and affirmed in part the judgment of the Court of Appeals.(124)

A. Litigation Attorney's Fees Are Barred

In rejecting litigation attorney's fees in private party response actions, the Supreme Court emphasized the lack of explicit congressional authorization.(125) Attorney's fees are not recoverable litigation costs "absent explicit congressional authorization."(126) Therefore, the American rule prohibits attorney's fee awards in private party response actions.

The Court denied attorney's fees for private party response actions for three reasons. First, the Court relied on the lack of any express provision authorizing a private party that had incurred cleanup costs to seek contribution from other responsible parties.(127) Although the Court realized that other courts have been virtually unanimous in holding that section 107(a)(1)-(4)(B) creates a private right of action for recovery of necessary costs of response,(128) the Court emphasized that section 107 outlines the liabilities and defenses of persons against whom only the government, not private parties, may assert claims.(129) Given that the private right of action for response costs under section 107 is an implied cause of action, an award of attorney's fees would be contrary to the American rule enunciated in Alyeska.(130) "To conclude that a provision that only impliedly authorizes suit nonetheless provides for attorney's fees with the clarity required by Alyeska would be unusual if not unprecedented."(131)

Second, the Supreme Court relied on the SARA amendments to conclude that legislative history is contrary to an award of attorney's fees. Two SARA amendments explicitly authorize attorney fee awards.(132) The citizen suit provision of section 310(f)(133) expressly authorizes awarding "reasonable attorney and expert witness fees" to the prevailing party.(134) Additionally, under section 106(b)(2)(E),(135) a person who is erroneously ordered to pay response costs in an attorney general abatement action may recover "appropriate costs, fees, and other expenses"(136) in accordance with 28 U.S.C. [sections] 2412(a) and (d). Under section 2412(d)(2)(A), the phrase "fees and other expenses" is defined to include reasonable attorney's fees.(137) Given that Congress expressly provided for attorney's fees under sections 310(f) and 106(b)(2)(E), the Court concluded that the failure to expressly provide for attorney's fees in private party response actions under section 107 and in contribution claims under section 113 manifested legislative intent not to allow attorney's fees in such actions.(138) In fact, the Court stated that "[t]hese omissions strongly suggest a deliberate decision not to authorize such awards."(139)

As its third reason for denying attorney's fees, the Court concluded that "it would stretch the plain terms of the phrase 'enforcement activities' too far to construe it as encompassing the kind of private cost recovery action at issue in this case."(140) The amendment of the definition of the terms "respond" or "response" to include removal and remedial action and "enforcement activities related thereto" is insufficient. Because of its adherence to Alyeska doctrine and to the general practice of not awarding attorney's fees to prevailing parties absent explicit statutory authority, the Court concluded that attorney's fees are not recoverable as litigation costs in private party response actions.(141)

B. Nonlitigation Attorney's Fees Are Recoverable

After discussing litigation attorney's fees, the Supreme Court proceeded to examine awarding attorney's fees as costs incurred while identifying other PRP's and preparing and negotiating a settlement agreement with the EPA. First, the Court stated that nonlitigation attorney's fees are fees incurred while performing tasks which might well be performed by "engineers, chemists, private investigators or other professionals who are not lawyers."(142) Second, the Court held that nonlitigation attorney's fees incurred as work closely tied to actual cleanup may constitute a necessary cost of response under section 107(a)(4)(B), because these efforts significantly benefit the entire cleanup effort and serve a statutory purpose other than cost reallocation.(143) Therefore, the Court concluded that legal fees expended in identifying other PRP's are recoverable.(144)

However, the Court held as nonrecoverable attorney's fees expended in connection with EPA negotiations resulting in a consent decree.(145) Inasmuch as the Court viewed these negotiations as primarily protecting Key Tronic's interest as a defendant, it reasoned that the fees do not constitute necessary costs of response.(146)

V. IMPLICATIONS OF KEY TRONIC

A. Critique

The Supreme Court in Key Tronic adhered to the rigid application of the American rule of attorney's fees, holding that there was not explicit statutory language providing for recovery of attorney's fees in private party response actions. Essentially, it appears that Congress must set forth the magic words "attorney's fees" in the statute before the Court will uphold an award of attorney's fees.(147) Although the Court stated that "[t]he absence of specific reference to attorney's fees is not dispositive if the statute otherwise evinces an intent to provide for such fees,"(148) the Court did not furnish an example of such a situation and it is hard to divine a situation where such an award could occur in conformance with the Court's opinion.

In review, the Court relied on three reasons for denying litigation attorney's fees: 1) private party response actions are not explicitly provided for in section 107; 2) the SARA amendments added two express provisions for attorney's fees in sections 310(f) and 106(b)(2)(E), but did not provide similar language under section 107; and 3) it would stretch the plain meaning of the phrase "enforcement activities" too far to determine that enforcement activities include attorney's fees. The implication of these three grounds, as well as the Court's holding allowing certain nonlitigation attorney's fees, are discussed below.

1. A Private Party Response Action is an Implied Cause of Action

The majority opinion in Key Tronic reasoned that because the section 107 private party response action is an implied cause of action it would be virtually impossible to meet the explicit clarity required by Alyeska.(149) The rationale facilitating this ground is hard to comprehend. First, it is difficult to ascertain why section 107 is viewed as an implied cause of action. Furthermore, even if section 107 is viewed as creating an implied private right of action, given that courts and Congress have widely accepted such action, it is equally difficult to understand what impact this has on the attorney's fee analysis. Lastly, it does not appear that Alyeska suggested that implied causes of action should receive suspect consideration under the American rule.

Section 107 arguably creates a private cause of action. The Supreme Court itself notes that numerous district courts have held that section 107 implies a private cause of action for recovery of response costs.(150) The majority recognized that district courts "have been virtually unanimous" in holding that section 107(a)(4)(B) creates a private right of action for private party response actions.(151) Many cases noted by the Supreme Court state that the private party response action is unambiguously provided for in section 107. In City of Philadelphia v. Stepan Chemical Co.,(152) the District Court for the Eastern District of Pennsylvania emphasized that the private right of action is "an action expressly authorized by CERCLA."(153) Likewise, the District Court for the Northern District of California stated in Pinole Point Properties v. Bethlehem Steel Corp.(154) that "[i]t is difficult for the Court to imagine statutory language that would more clearly grant a private cause of action."(155) Other courts have noted that the private right of action appears in "the plain language of the act itself,"(156) and "appears on its face."(157) The majority, however, did not explain why it viewed the cause of action as an implied cause of action.

To determine whether a cause of action is express or implied requires an examination of the applicable statutory language.(158) If the cause of action is expressed in the statute, there is no need to proceed to an implied right of action analysis.(159) The argument that a section 107 private party response action is an implied cause of action is arguably inadequate given that section 107(A)(1)-(4)(B) provides that responsible parties are liable for "[a]ny other necessary costs of response incurred by any other persons consistent with the national contingency plan."(160) Surely, this language provides for a private right of action. In Walls v. Waste Resource Corporation,(161) cited by the Supreme Court in Key Tronic, the Sixth Circuit reversed a prior district court decision dismissing a plaintiff's action seeking recovery of its response costs under section 107. In holding that section 107(a) provides a private right of action, the Walls court stated the district court's "holding is inconsistent with the literal statutory language of section 9607(a) and is at odds with congressional intent in enacting CERCLA."(162) Thus, the literal statutory language of section 107(a) supports the private cause of action.

Justice Scalia, in reaction to the Court's characterization of the private right of action under section 107 as an implied right of action, dissented that this characterization is "mistaken."(163)

Surely to say that A shall be liable to B is the express creation of a right of action. Moreover, other language in [sections] 107 of CERCLA refers to "amounts recoverable in an action under this section," and language in [sections] 113 discusses the 'civil action ... under section 107(a).' The Court's assumption seems to be that only a statute that uses the very term 'cause of action' can create an 'express' cause of action, and that all other causes of action are 'implied.' That is not ordinary usage.(164)

Justice Scalia argued that by stating responsible parties are liable for response costs incurred by other persons, the statute creates an express cause of action. Not only does statutory language and case law support the express cause of action, but other provisions of CERCLA reinforce the interpretation that section 107(a) creates an express private cause of action. Section 107(a)(1)-(4)(D) uses the language, "amounts recoverable in an action under this section" and section 113(f) refers to the "civil action under section 107(a)." Furthermore, Justice Scalia argued that if section 107(a)(4)(A), stating that responsible parties are liable for certain costs "incurred by the United States Government or a State or an Indian Tribe," creates an express cause of action for those plaintiffs, then section 107(a)(4)(B), which states that responsible parties are liable for "costs of response incurred by any other persons," provides an express cause of action for private parties.(165)

Justice Scalia's arguments were not refuted by the majority. In fact, the majority admitted that other references in CERCLA support the private right of action under section 107. The majority specifically pointed to the SARA amendments referred to by Justice Scalia as supporting the private right of action.

The 1986 SARA amendments included a provision--CERCLA [sections] 113(f)--that expressly created a cause of action for contribution. Other SARA provisions, moreover, appeared to endorse the judicial decisions recognizing a cause of action under [sections] 107 by presupposing that such an action existed. An amendment to [sections] 107 itself, for example, refers to 'amounts recoverable in an action under this section.' The new contribution section also contains a reference to a 'civil action ... under section 107(a).'(166)

The private right of action under section 107 is arguably quite explicit.(167) Not only does the statute explicitly state that responsible parties are liable for "necessary costs of response incurred by any other persons," other CERCLA provisions support the private cause of action in [sections] 107(a). The majority's contention that section 107 provides an implied cause of action instead of an express cause of action appears to be misplaced. In none of the previous lower court decisions is this reasoning utilized. The private cause of action is supported by statutory language, case law, and other provisions of CERCLA.

Even if the private party response action is only an implied right of action, it is difficult to comprehend what impact this would have on the Alyeska analysis. To find an implied cause of action (in the absence of express language) courts utilize a four part test: 1) is the plaintiff one of the class for whose benefit the statute was enacted; 2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; 3) is it consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaintiff; and 4) is the cause of action one traditionally relegated to state law, in an area basically the concern of the states.(168) The predominant factor is whether Congress intended to create a private cause of action.(169) By assuming that the private party response action is an implied cause of action, the Supreme Court is in effect conceding that there is significant congressional intent to create the private right of action. Therefore, if there is expressed congressional intent to create a private right of action, why would the Alyeska analysis be different in an implied right of action than in an express right of action?

The implied right of action argument also seems a step removed from an Alyeska analysis. The Alyeska analysis focuses on whether there is explicit statutory language for awarding attorney's fees. For example, if the definition of the terms "respond" and "response" was amended to include removal and remedial action and "attorney's fees related thereto," the mere characterization of the section 107 private cause of action as an implied cause of action would be immaterial.(170) The proper analysis pursuant to Alyeska is an examination of the specific language "enforcement activities related thereto."

There is no language in Alyeska which suggests that implied rights of action should receive suspect consideration under the American rule. In Alyeska, several environmental groups sued the Secretary of the Interior under section 28 of the Mineral Leasing Act of 1920(171) and the National Environmental Policy Act of 1969 (NEPA)(172) to prevent issuance of construction permits for the trans-Alaska oil pipeline.(173) The State of Alaska and Alyeska Pipeline Service Company intervened. The District Court for the District of Columbia granted a preliminary injunction on grounds of violations of both Mineral Leasing Act and NEPA. Subsequently, the Secretary of the Interior announced that the requested permits would be granted and the District Court dissolved the preliminary injunction. The Court of Appeals for the District of Columbia Circuit reversed, basing its decision on violations of the Mineral Leasing Act. Congress responded by enacting legislation amending the Mineral Leasing Act to allow the permits to be granted and declaring that no further NEPA action was required.

The Court of Appeals subsequently addressed the issue of attorney's fees requested by the environmental groups. As the Supreme Court noted in Alyeska, "[s]ince there was no applicable statutory authorization for such an award, the court proceeded to consider whether the requested fee award fell within any of the exceptions to the general 'American rule' that the prevailing party may not recover attorneys' fees as costs or otherwise."(174) After examining the exceptions to the American rule, the Court of Appeals held that attorney's fees were awardable under a private attorney general theory because the plaintiffs furthered significant public policy.

The Supreme Court, in its discussion of attorney's fees in Alyeska, did not address the impact of implied causes of action on the American rule.(175) Moreover, the Court noted there was no applicable statutory authorization for the attorney's fee awards and examined the exceptions to the American rule. In CERCLA, however, the analysis focuses on statutory language and statutory authorization, not the general exceptions to the American rule.

The Court's suggestion that it would be virtually impossible for an implied cause of action to meet the explicit clarity required by Alyeska is difficult to comprehend. Not only is the private right of action engraved in statutory language, case law, and supporting provisions, Alyeska does not suggest that implied causes of action should receive suspect treatment.

2. SARA Added Two Express Provisions for Attorney's Fees

The Key Tronic Court's second ground for denying attorney's fees in private party response actions is that the SARA amendments added two new provisions which specifically provide for attorney's fee awards, but neither of the amendments applied to section 107 private party response actions. The citizen suit provision of section 310(f)(176) expressly authorizes awarding "reasonable attorney and expert witness fees" to the prevailing party.(177) Likewise under section 106(b)(2)(E),(178) a party erroneously ordered to pay response costs in an Attorney General abatement action may recover "appropriate costs, fees, and other expenses" in accordance with 28 U.S.C. [sections] 2412(a) and (d).(179) "[F]ees and expenses" under section 2412(d)(2)(A) include reasonable attorney's fees.(180) Congress's knowledge and ability to expressly provide for attorney's fees in other provisions reasonably indicate congressional intent not to allow for private party attorney's fees in section 107.

The Court's third reason for denying attorney's fees--that the phrase "enforcement activities" is not sufficiently explicit to allow for private party attorney's fees--is the crux of its argument. Congress did not choose to include the express term "attorney's fees" in defining "respond" or "response" for purposes of determining "necessary costs of response." But is this failure alone sufficient ground to deny attorney's fees?

A closer look at the two express SARA provisions allowing attorney's fees helps to answer this question. Although section 310(f) uses the term "attorney's fees," section 106(b)(2)(E) does not. Section 106(b)(2)(E) uses the phrase "appropriate costs, fees, and other expenses," and then references a provision in a wholly different statutory scheme to define such costs to include attorney's fees. It is noteworthy that attorney's fees have also been held to be recoverable in government actions under section 107.(181) Section 101(23)(182) of CERCLA defines removal as including action taken under section 104(b).(183) According to section 104(b), the government "may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as [it] may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter."(184) Although this language does not use the magical term "attorney's fees" and is not language of clarity, courts have found the language sufficient to allow the government to recover its attorney's fees in section 107 actions.(185)

Of the two SARA provisions cited by the Court, one uses the term "attorney's fees;" the other uses the language "appropriate costs, fees, and other expenses," but references another statutory provision which defines such costs to include attorney's fees. Thus, according to this analysis, explicit language in secondary provisions may be sufficient. In the third provision discussed above, mere reference that one can undertake "legal studies" and recover the costs thereof may be sufficiently explicit to allow attorney's fees. The majority did not address the validity of government attorney's fees and such an award may be questionable under the majority's holding in Key Tronic.(186) However, if "legal studies," an arguably broader term than "attorney's fees," can meet the requirements of the American rule, it is reasonable to conclude that "enforcement activities," also a broader term, could meet the requirements of the American rule. The Key Tronic analysis fails to address this contention. In conclusion, it appears that Congress must explicitly provide for attorney's fees or reference a provision which does so.

3. The Phrase "Enforcement Activities" Does Not Include Attorney's Fees

According to the Court in Key Tronic, "it would stretch the plain terms of the phrase 'enforcement activities' too far to construe it as encompassing"(187) attorney fee awards in private party response actions. The Court does not, however, tell us what the phrase "enforcement activities" means. The only insight given is that the phrase may form the basis for allowing the government to recover attorney's fees in section 107 actions.(188) According to the Court, the statute must use the term "attorney's fees" or reference a provision which uses these magic words. The "enforcement activities" language fails this scrutiny.

What does the phrase "enforcement activities" mean? Given that under principles of statutory interpretation, the primary rule of implementing legislative intent is to "ascertain and give effect to the plain meaning of the language used"(189) and that statutes should not be interpreted in a way that would render "words superfluous,"(190) the term "enforcement activities" must be given some meaning. It is in interpreting the meaning of enforcement activities that prior courts have differed in either awarding or denying attorney's fees.

Although not discussed by the Supreme Court, prior lower court decisions denying attorney's fees have emphasized that enforcement activities refer to government enforcement actions.(191) These courts contend that only the government may bring an enforcement action under section 107. Private parties may only recover response costs under section 107 and may not bring an action to enforce CERCLA's cleanup provisions against other private parties.(192)

The United States, in its brief before the Supreme Court in Key Tronic, argued that the phrase "enforcement activities" was added to the definition of "response" to accentuate the government's ability to recover its enforcement costs in removal and remedial actions.(193) At best, it applies to private parties only if the action ensures cleanup of hazardous releases and reallocates the costs to polluters instead of society.(194) The crux of the government's argument is that enforcement activities are activities that ensure remediation from society to polluters.(195) Although the government argued that the most common use of the word "enforcement" in statutes delegating responsibilities to administrative agencies is to describe agency suits to require compliance with agency orders, it conceded that the term is sometimes used by Congress to describe private party actions to compel statutory compliance.(196) However, the government contended that the boundaries of enforcement activities do not extend to activities that do not further the primary goals of CERCLA (to ensure "that hazardous waste sites are cleaned up and that the costs of pollution are borne by polluters as a group rather than society as a whole").(197)

The United States also emphasized that CERCLA uses terms such as "enforcement actions," "enforcement measures," and "enforcement proceedings," and that none of these references refers to actions to reallocate the costs of pollution among polluters.(198) Instead, they describe actions to ensure remediation of hazardous releases and the shifting of remediation costs to polluters.(199) The government argues that although several of the references could be construed to include private party actions--including section 101(25)--they do not "reallocate costs among polluters rather than to shift them to polluters in the first instance."(200)

The main weakness with the government's argument is that the term "enforcement activities" appears in section 101(25)(201) of the general definition section of CERCLA and is applicable not only to government response actions but to private party response actions as well. Justice Scalia, dissening in Key Tronic, argued against the application of the term "enforcement activities" solely to government actions:

While the term 'enforcement' often--perhaps even usually--is used in connection with government prosecution, that is assuredly not the only form of legal action it refers to. It clearly includes the assertion of a valid private claim against another private litigant. Lawyears regularly speak of 'enforceable obligations' and 'enforceable contracts,' and of 'enforcing' a private judgment. We have called the private rights of action created by the Clayton Act 'vehicles for private enforcement' of the law, and the 'private enforcement characterization seems especially apt here, where the plaintiff's suit must be 'consistent with the national contingency plan' promulgated by the EPA.(202) Likewise, Key Tronic's counsel, Mark Schneider, argued in oral arguments before the Supreme Court:

Where a party imposes the liabilities and obligations of CERCLA on others by undertaking cleanup and then compelling others to share in the cost of cleanups, those actions constitute enforcement activities within the meaning of the statute.

The term 'enforcement activity' as that term is used in CERCLA includes attorneys' fees because the primary enforcement activity in the context of section 101(25) and in the context of section 107 is a suit to impose the liabilities and obligations of CERCLA on parties that have caused environmental contamination.(203)

Undoubtedly enforcement activities refer not only to government action, but also to private party actions to enforce CERCLA's scheme under section 107. Moreover, Congress could have easily limited enforcement activities to government actions. It could have simply amended "response" under section 101(25) to include related government enforcement activities. But Congress did not choose to do so.

Because the "enforcement activities" language applies equally to the government and private parties,(204) it is reasonable to conclude that enforcement activities include private party actions to enforce CERCLA liabilities and obligations against responsible parties.(205) If a private party can recover its costs of enforcement activities in compelling a responsible party to reimburse it for its response costs, arguably a private party should be able to recover its attorney's fees as enforcement costs in private party response actions.

Moreover, private party response actions are not merely actions to reallocate the costs of pollution among polluters. The government emphasized that enforcement actions are actions that promote remediation of hazardous releases and the shifting of remediation costs to polluters.(206) This classification is problematic for two reasons. First, given that CERCLA's liability scheme holds mere owners of contaminated sites liable for response costs,(207) an action by an owner to force the parties responsible for contamination to reimburse its response costs is an action which promotes remediation and shifts remediation costs to polluters. It is not an action to reallocate the costs of pollution among polluters. The General Electric Co. v. Litton Industrial Automation Systems, Inc. case discussed above is a good example.(208) General Electric (GE) purchased nineteen acres from Litton in 1970. Unknown to GE, the property was contaminated. After GE was required to clean up the site, it sued Litton for reimbursement of its response costs. GE promoted remediation of the site (GE remediated the site prior to its extensive litigation against Litton) and shifted the remediation costs to the polluter, Litton. GE, itself, was not a polluter. The General Electric case is not an isolated incident, but a common situation under CERCLA.(209)

The second reason is that even in situations where the plaintiff contributed to the contamination of the site by taking the initial action to remediate the site before litigating the responsibility of the responsible parties, the plaintiff promotes remediation of the contamination and shifts a portion of the remediation costs to polluters. It significantly benefits the cleanup of the site to have one party step forward and begin the cleanup before extensively litigating the liability of other parties.

Courts awarding attorney's fees furthermore stress that the "enforcement activities" language is sufficiently stronger than the language examined in Alyeska and Runyon. In Alyeska, the Court addressed the issue of attorney's fees in the absence of supporting statutory language. Instead, the Alyeska analysis focused on general exceptions to the American rule. Unlike Alyeska, the plaintiff in a private party response action can point to a specific statutory provision--enforcement activities--to argue attorney's fees are recoverable as a necessary cost of response. Likewise, the Supreme Court's opinion in Runyon is distinguishable. The plaintiffs in Runyon contended that, although there was no authorization for attorney's fees in 42 U.S.C. [sections] 1981, there was implicit authority under 42 U.S.C. [sections] 1988.(210) The plaintiffs argued that [sections] 1988 authorized federal courts to "furnish suitable remedies," and attorney's fees were thus awardable "whenever such fees are needed to encourage private parties to seek relief against illegal discrimination."(211) The "enforcement activities" language applicable in private party response actions debatably presents a much stronger contention than the Supreme Court addressed in either Alyeska or Runyon.

The Supreme Court did not tell us what the term "enforcement activities" means.(212) However, the Court did tell us that it does not include attorney's fee awards in private party response actions. According to the Court, the plain meaning of the phrase "enforcement activities" is not specific enough to include attorney's fees. The question remains: what are enforcement activities?

4. The Award of Nonlitigation Fees Furthers the Cleanup Objectives of

CERCLA

Although the Supreme Court in Key Tronic held that nonlitigation attorney's fees incurred in identifying potentially responsible parties (PRPs) were recoverable as a necessary cost of response, the Court denied recovery of attorney's fees incurred by Key Tronic in negotiating a consent decree with the EPA. The Court distinguished nonlitigation attorney's fees from litigation fees by stating that nonlitigation work may be performed by nonlawyers.(213) In allowing attorney's fees incurred in identifying PRPs, the Court stated that such work furthers the cleanup objectives of CERCLA. However, in denying attorney's fees in connection with EPA negotiations resulting in a consent decree, the Court stated that such work was primarily performed to protect Key Tronic's interests as "a defendant in the proceedings that established the extent of its liability."(214) Thus, the determining factor is whether the nonlitigation fees significantly benefit the entire cleanup effort, separate and apart from work done towards the reallocation of costs.(215)

The Supreme Court's analysis in Key Tronic can be divided into two parts. First, the attorney's fees incurred must be nonlitigation attorney's fees. Second, the work performed in connection with these fees must significantly benefit the remediation, separate and distinct from the reallocation of costs and the protection of one's own interest as a defendant.

The first part of the analysis is whether the attorney's fees are incurred in litigation or are nonlitigation fees. This determination is crucial. If the attorney's fees fail this analysis, then they are nonrecoverable pursuant to Key Tronic. Nonlitigation attorney's fees, unlike litigation attorney's fees, are not governed by the American rule as set forth in Alyeska.(216) There need not be explicit statutory language providing for recovery of nonlitigation attorney's fees.

The key in determining whether the fees are nonlitigation fees is whether nonlawyers could do the same work. In addressing Key Tronic's claim for attorney's fees incurred in identifying other PRPs, the Court stated: "[u]nlike the litigation services at issue in Alyeska, these efforts might well be performed by engineers, chemists, private investigators or other professionals who are not lawyers.... [T]he American rule set out in Alyeska does not govern such fees 'because they are not incurred in pursuing litigation.'"(217) Therefore, attorney's fees incurred in performing tasks which could be performed by nonlawyers are nonlitigation attorney's fees.

If the fees are nonlitigation attorney's fees, the court will proceed to the second part of the analysis to determine whether they are recoverable. The second part is whether the work significantly benefits the remediation, separate and distinct from the reallocation of costs and the protection of one's interest as a defendant.(218) The Court held that nonlitigation costs incurred in identifying PRPs were recoverable, but attorney's fees expended in negotiating a consent decree with the EPA were nonrecoverable. This part of the analysis opens a can of worms which is not effectively shut by the Supreme Court.

The rationale used to distinguish between allowing attorney's fees incurred in identifying other PRPs and denying those incurred in negotiating a settlement and consent decree is that in identifying other PRPs the plaintiff is furthering the cleanup objectives of CERCLA, but in negotiating a consent decree the plaintiff is merely asserting defenses to its liability and seeking to reallocate costs. Although there is much truth in the first statement--identifying PRPs increases the probability that a cleanup will be effective and get paid for, the second statement--negotiating a settlement and consent decree with the EPA is work primarily done to protect one's interest as a defendant--is less valid. Work by attorneys in negotiating a settlement and consent decree may very well promote cleanups and imposition of response costs on responsible parties. Even the Court itself noted that such work "may indeed have aided the EPA and may also have affected the ultimate scope and form of the cleanup."(219) Perhaps there is more emphasis on protecting one's interest as a defendant in negotiating a settlement decree, but one is also very emphatically asserting defenses to liability in identifying other responsible parties to share response costs. The distinction is one of degrees.

The negotiation of a consent decree can significantly benefit the entire cleanup effort. By entering into a consent decree, the EPA can assure that remediation efforts begin immediately and not be forced to await the outcome of lengthy and costly litigation delays. For example, as part of the work performed to enable Key Tronic to enter into a consent decree with the EPA, Key Tronic retained counsel and a consultant to work with the EPA and Washington Department of Ecology to investigate the site and develop a plan of remediation to be performed at the site.(220) This work benefitted the remediation of the site. Furthermore, after entering into a consent decree with one party, the EPA can pursue other PRPs with the knowledge that cleanup has begun. Although the Court states that Key Tronic's negotiation of a consent decree was conducted primarily to protect its interest as a defendant in the proceedings,(221) there is another crucial reason why Key Tronic or any responsible party seeks to identify other responsible parties: to protect its interest and seek a proper allocation of costs. From a legal standpoint, once a responsible party's liability has been established the cleanup objectives of CERCLA are bolstered because in the absence of other PRPs, the responsible party may be liable for the entire cleanup. Moreover, the main purpose of identifying PRPs is to ensure the allocation of costs and to protect one's financial interest as a defendant. If other PRPs are identified, the responsible party will have a stronger defense as to its share of the cleanup costs.

In both identifying other PRPs and in negotiating a consent decree with the EPA, the cleanup objectives of CERCLA are promoted, and costs are reallocated. Which interest is predominant is hard to resolve.(222) In Key Tronic, the government argued for an opposite result than the Supreme Court's conclusion. The government, in its brief, contended that costs incurred in identifying other PRPs "contributed nothing to the containment and cleanup of hazardous releases at the site,"(223) but that costs incurred in negotiating a consent decree with the EPA "poses a closer question."(224) Obviously, the Key Tronic analysis will lead to much uncertainty in resolving whether the costs significantly benefit the remediation of the site, separate and distinct from the reallocation of costs and the protection of one's own interest as a defendant.

The Supreme Court's analysis and determination in Key Tronic ultimately results in opening a can of worms. It is often quite difficult to determine whether the work promotes the cleanup objectives or is primarily done to reallocate costs or protect one's interest as a defendant. This determination will rarely, if ever, be obvious. Ultimately, more than one of these elements will be present.

B. Government Attorney's Fees Under Section 107

Despite the fact that the Court did not address the issue of whether the government may recover attorney's fees under section 107 of CERCLA, the Supreme Court's opinion in Key Tronic will have significant effects on government attorney fee awards under that section. In dicta, the Court noted both that the district courts have generally held government attorney's fees recoverable and that Congress arguably endorsed these holdings in SARA by amending "response" to include related enforcement activities.(225) In its discussion, the Court emphasized the comments made by the Committee of Energy and Commerce concerning the enforcement activities language: "[t]he section also modifies the definition of 'response action' to include related enforcement activities. The change will confirm the EPA's authority to recover costs for enforcement actions taken against responsible parties."(226) The Supreme Court's analysis, however, will be profoundly detrimental to section 107 government attorney fee awards.

CERCLA provides that responsible parties are liable for "all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan."(227) Removal is defined to include action taken under section 104(b),(228) which provides that the President "may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter."(229) Arguably then, the government may recover its attorney's fees. As mentioned earlier, courts addressing the issue have generally held that the government may recover its attorney's fees in pursuing section 107 actions.(230) The addition of enforcement activities to the definition of response in section 101(25) reinforces awarding government enforcement costs as enforcement activities refer to both removal and remedial actions.(231)

While the Supreme Court in Key Tronic did not examine the issue of government attorney's fees in section 107 actions, government attorney's fees can be analyzed under the Key Tronic analysis. First, is the section 107 government response action an express cause of action or an implied cause of action? Second, what impact do the two SARA amendments expressly allowing for attorney's fees have on government attorney's fees under section 107? Finally, what impact does the Supreme Court's determination that the plain meaning of the phrase "enforcement activities" does not include attorney's fees have on government attorney fee awards under section 107?

1. Is the Section 107 Government Response Action an Express Cause of

Action?

Arguably, section 107 creates an express cause of action for the government to recover its response costs. Therein, responsible parties are liable for "all costs of removal or remedial action incurred by the United States Government or a State or an Indian Tribe not inconsistent with the national contingency plan."(232) According to the Supreme Court's analysis in Key Tronic, however, this language may not be sufficient to constitute an express cause of action.

In Key Tronic, the Supreme Court held that similar language was insufficient to constitute an express cause of action for private party response actions.(233) The Court, however, indicated that a government response action is an express cause of action.(234) Because sections 104 and 106 of CERCLA "plainly indicate that the parties described in section 107 are liable to the Government," the Court determined that CERCLA "expressely identifies the Government as a potential plaintiff."(235) Thus, the Court reviewed other sections of CERCLA to determine that a government response action is an express cause of action.

However, as for private party response actions, the Court did not find the support in other provisions to be conclusive. If one looks to other sections of CERCLA, one will discover language supporting the private right of action under section 107. Even the majority in Key Tronic noted this support: "[t]he 1986 SARA amendments included a provision--CERCLA section 113(f)--that expressly created a cause of action for contribution. Other SARA provisions, moreover, appeared to endorse the judicial decisions recognizing a cause of action under section 107 by presupposing that such an action existed."(236) Section 107 specifically refers to "an action under this section."(237) Similarly, CERCLA's contribution section, found at section 113(f),(238) states that "[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title."(239) Thus, the Court's own analysis of private party response actions raises doubt as to the significance of its comment that the government action is an express cause of action.

In light of the support for private party response actions in sections 107 and 113(f), it is hard to understand how such an action is an implied cause of action while a government response action under section 107, which also looks to other CERCLA provisions for support, can be classified as an express cause of action.(240) Not only is the statutory language of section 107 similar in respect to government and private party response actions, but other provisions of CERCLA clearly support both causes of action. Therefore, the determination that the government response action is an express cause of action, while the private party response action is an implied cause of action should be subject to considerable scrutiny.

2. What Impact Do the Two SARA Amendments (Sections 310(f) and

106(b)(2)(E)) Have on Government Response Actions?

As discussed previously, section 310(f) expressly authorizes awarding "reasonable attorney and expert witness fees,"(241) and section 106(b)(2)(E) provides that a party may recover "appropriate costs, fees, and other expenses" in an Attorney General abatement action, referencing 28 U.S.C. [sections] 2412(d)(2)(A), which states that fees and expenses include attorney's fees.(242) The Supreme Court relied on these two amendments in concluding that adding the enforcement activities language to the definition of "response" evidenced legislative intent not to allow attorney's fees in private party response actions.(243)

Similarly, the fact that Congress knew how to expressly provide for attorney's fees and did so in sections 113(f) and 106(b)(2)(E) but failed to do so in government response actions reveals legislative intent not to allow attorney's fees in such actions. Similar to private party response actions, there is no provision which expressly allows the government to recover attorney's fees. Neither section 107(a) nor the definition of the term "response" under section 101(25) explicitly provides for the government to recover its attorney's fees. And unlike section 106(b)(2)(E), which does not itself state attorney's fees are recoverable but references a provision which does, there is no comparable provision the government can point to which uses the attorney's fees language.

The counter argument is that section 104(b) implies the government can recover attorney's fees in response actions. The language of section 104(b), however, is not well defined.(244) It states that the government "may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as [it] may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.(245)

This language is inadequate if one uses the Key Tronic analysis. The Court in Key Tronic referenced two SARA provisions which explicitly provide for attorney's fees. Arguably, section 106(b)(2)(E) does not use the magic words "attorney's fees," but it references a statutory provision which does. Section 104(b) falls short, merely providing that the government may undertake legal studies and recover the costs thereof. The meaning of the phrase "legal studies" is ambiguous. According to the Key Tronic analysis, the term "legal studies," at best, means that the government may recover nonlitigation attorney's fees in preparing response actions or in locating responsible parties. Thus, the government would be able to recover attorney's fees incurred in locating responsible parties or other activities that could be done by nonlawyers if the requirements of the two-part test enunciated in Key Tronic for nonlitigation attorney's fees were met.

The countervailing argument has one more point that merits some consideration. Legislative history debatably supports the government's authority to recover attorney's fees. The report of the Committee of Energy and Commerce, in addressing the addition of the enforcement activities language to the definition of response, stated that the language was added to confirm the EPA's authority to recover costs for enforcement activities taken against responsible parties.(246) Although this language does not state that the government may recover attorney's fees, there were prior judicial opinions allowing government attorney fee awards. However, the strength of this legislative history is questionable given that the subsequent Conference Committee Report omits the explicit reference to the EPA.(247) The only clear inference from the legislative history is that Congress intended response costs to include costs of enforcement activities in removal and remedial actions. Furthermore, legislative history alone will not withstand the explicitness required by the American rule.

A strict analysis under the Key Tronic opinion weighs against awarding government attorney's fees under section 107. In amending CERCLA through the SARA amendments, Congress evidenced that it knew how to use explicit language to provide for attorney's fees. The fact that Congress did not use the "attorney's fees" phrase substantiates denying government attorney's fees under section 107.

3. It Would Stretch the Plain Meaning of the Phrase "Enforcement

Activities" Too Far to Determine that Enforcement Activities Include Attorney's Fees

The Supreme Court in Key Tronic, held that "it would stretch the plain terms of the phrase 'enforcement activities' too far to construe it as encompassing" attorney's fees in private party response actions.(248) Instead, the Court emphasized that the "enforcement activities" language was insufficient to allow private party attorney's fees. "Given our adherence to a general practice of not awarding fees to a prevailing party absent explicit statutory authority, we conclude that CERCLA section 107 does not provide for the award of private litigants' attorney's fees associated with bringing a cost recovery action."(249) The same rationale should apply to the award of government attorney's fees, even though the Court noted that "[w]e offer no comment on the extent to which that phrase forms the basis for the Government's recovery of attorney's fees through section 107."(250)

Simply put, the plain meaning is the same for both government and private parties; the definition of the term "plain meaning" requires such an outcome. Only if one looks beyond the plain meaning will one find possible support for government attorney's fees. Moreover, Alyeska applies equally to the government as to private parties. There must be explicit statutory authorization for attorney's fees. If it would stretch the plain meaning of the term "enforcement activities" to encompass attorney's fees in private party response actions, it would likewise stretch the plain meaning of the term too far to encompass government attorney's fees.

Assuming that the plain meaning of the term "enforcement activities" does not include attorney's fees, the government must rely on some other provision to find support for government attorney's fees. Section 104(b), which provides that the government may undertake legal studies or investigations to plan and direct response actions and recover the costs thereof, illustrate the government's difficulty. In relying on the "legal studies" language, the government comes up short; the explicit language that appears to be required by the Supreme Court is nowhere to be found.

C. The American Rule: Where Does Key Tronic Leave Us?

In Key Tronic, the Supreme Court significantly revised the boundaries of the American rule. The American rule simply stated is that the prevailing litigant is ordinarily not entitled to collect attorney's fees from the losing party.(251) From the seminal case of Alyeska, the Supreme Court in 1975 held that it was inappropriate for the judiciary to fashion an exception to the American rule without legislative guidance.(252) In Runyon v. McCrary,(253) the Supreme Court further developed the boundaries of the American rule. Absent explicit congressional authorization, attorney's fees are not recoverable as litigation cost.(254)

The Key Tronic opinion will have three effects on the American rule. First, under the Key Tronic analysis, implied rights of action do not merit attorney's fee awards. Second, the Supreme Court clearly indicated that the common benefit or fund exception will be used sparingly and does not apply in private party response actions. Finally, in order to circumvent the American rule, Congress should use the magic words "attorney's fees."

1. Implied Rights of Action Do Not Merit Attorney's Fee Awards

The analysis set forth in Key Tronic further revises the boundaries of the American rule. The first and perhaps most significant impact is the Court's holding that implied rights of action should not be equated with express rights of action for purposes of recovering attorney fees. Only in very rare circumstances can an implied right of action meet the clarity and explicitness required by Alyeska.(255) "To conclude that a provision that only impliedly authorizes suit nonetheless provides for attorney's fees with the clarity required by Alyeska would be unusual if not unprecedented."(256) Therefore, if a cause of action is deemed to be an implied cause of action it will be extremely difficult, if not impossible, for statutory language to satisfy the American rule requirements.

Examining the private party response action more closely is helpful. Assume, for example, that the definition of "response" had been amended by SARA to read "the terms 'respond' or 'response' means remove, removal, remedy, and remedial action; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities and attorney's fees related thereto."(257) Given that section 107(a)(1)-(4)(B) provides that responsible parties are liable for "necessary costs of response incurred by any other person," on first glance it would appear that a private party could recover attorney's fees in private party response actions. The Key Tronic opinion, however, casts doubt on this interpretation. Inasmuch as the Supreme Court held that the private party response action is an implied cause of action, it "would be unusual if not unprecedented"(258) that the clarity required by Alyeska would be met because enforcement activities are still not defined. Even if the definition of "response" included "enforcement activities and attorney's fees related thereto," the award of attorney's fees to a private party who can recover its necessary costs of response, would be suspect and subject to what the Supreme Court labeled a virtually unprecedented finding. Maybe this hypothetical would be the unusual case where the clarity was sufficient to meet the American rule requirements. However, the Court did not give us insight as to what would constitute such an unusual situation where the clarity requirement is met. The Court's analysis clearly showed that such a determination would receive suspect classification.

In making arguments for attorney's fees, counsel should focus on the cause of action and argue vehemently that their cause of action is an express cause of action. Once again, the Supreme Court in Key Tronic did not provide us with much guidance as to when an action will be classified as an implied cause of action. The Supreme Court appeared to indicate that the statutory provision must use the term "cause of action" to create an express cause of action.(259) In indicating that a government response action was an express cause of action, the Court examined sections 104 and 106 to determine that responsible parties are liable to the government under section 107 and that the government is expressly identified as a plaintiff.(260) Therefore, according to this analysis one can look to other provisions to find the language sufficient enough to create a cause of action. However, private parties can point to section 113(f) which states that "[a]ny person may seek contribution from any other person who is liable under section 9607(a) ... during or following any civil action under ... section 9607(a)."(261) According to the Court, this language is insufficient. Thus, the Court did not help us by adequately explaining when a cause of action will be deemed an express cause of action or an implied cause of action. What it did stress is that counsel, in arguing for attorney's fees, should strongly argue that their cause of action is an express cause of action.

The boundaries of the American rule have been revised by the Supreme Court in Key Tronic. If an action is an implied cause of action, it will receive suspect classification and strict scrutiny, consequently making it virtually impossible to meet the clarity requirements in Alyeska.

2. Common Benefit or Fund Exception Does Not Apply to Private Party

Response Actions

Pursuant to the common fund exception to the American rule, courts have the equitable power to allow "the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself" to recover attorney's fees from the fund or property or other parties enjoying the benefit thereof.(262) Under the common benefit or fund exception, the liability for attorney's fees is not shifted to the losing party but is paid out of a common fund or property which the plaintiff's suit was brought to protect.(263) The rationale is that those who receive a benefit should share in the costs of the action, and it would be inequitable for the plaintiff who obtains a benefit for the group to bear the costs alone.

Key Tronic's counsel made the argument that the plaintiff in a private party response action obtains a common benefit to other PRPs and therefore is entitled to recover attorney's fees from the PRPs benefitted.(264)

When one party, among several statutorily liable persons, bears the costs, including attorney's fees, associated with designing and negotiating the cleanup of a polluted site, identifying the persons responsible for the pollution, and spreading those costs among the persons liable, a common benefit is conferred on all liable parties. This common benefit should be recoverable.(265)

Key Tronic argued that by designing and negotiating the cleanup of the Colbert landfill, and by identifying other PRPs, it had brought a common benefit to other responsible parties.

Arguably, by identifying other PRP's, Key Tronic did benefit each PRP because other parties were identified and costs were allocated among a greater number of parties. The benefit, however, stops there. Being identified as a PRP certainly does not benefit the identified party. In negotiating the cleanup of the site, Key Tronic's actions may likewise not benefit other PRPs. Furthermore, in bringing an action against other PRPs for costs of response, it is hardly beneficial to the other PRPs that are defendants in the action.

Although the common exception was argued in Key Tronic's brief, the Supreme Court did not address it in either its opinion or in oral arguments. One can only conclude that the Court would not endorse the common fund exception to the American rule in CERCLA private party response actions.(266)

3. The Magic Phrase "Attorney's Fees" Should Be Used by Congress

Absent explicit congressional authorization, attorney's fees are not recoverable as litigation costs. What language is sufficient to meet the requirements of the American rule? The Supreme Court in Key Tronic held that the plain meaning of the term "enforcement activities" did not encompass attorney's fees in private party response actions.(267) Moreover, the Court referred to two SARA amendments which had sufficient language. Section 310(f) states that the prevailing party may recover "reasonable attorney and expert witness fees."(268) Section 106(b)(2)(E) states that a party may recover "appropriate costs, fees, and other expenses"(269) and then references 28 U.S.C. [sections] 2412(d), which provides that fees and expenses are defined to include reasonable attorney's fees.(270)

To overcome the requirements of the American rule it appears that Congress must use the phrase "attorney's fees" or refer to a provision which does. However, this conclusion arguably calls into question the government's ability to recover attorney's fees. The provision relied on in section 107 is section 104(b). Section 104(b)(1) provides that the government "may undertake ... legal ... studies or investigations ... to plan and direct response actions, [and] to recover the costs thereof."(271) This provision does not use or reference a provision which uses the magical words "attorney's fees." The Court did not address this issue, and arguably, under the Key Tronic analysis such fees would not be recoverable.

VI. SUMMARY

Private party attorney's fees incurred in litigation of section 107 response actions are not recoverable. The Supreme Court in Key Tronic enunciated three reasons for denying private party attorney's fees: 1) the private party response action under section 107 is an implied cause of action and thus receives suspect classification and strict scrutiny under the American rule; 2) Congress, through the SARA amendments, explicitly provided for attorney's fees in sections 310(f) and 106(b)(2)(E), and consequently the lack of such explicit language in private party response actions evidences congressional intent not to allow attorney's fees; and 3) the phrase "enforcement activities" added to the definition of response does not include attorney's fees.(272)

Although private party attorney's fees incurred in litigating response actions in section 107 actions are not recoverable, Key Tronic left the door open for recovery of nonlitigation attorney's fees. Under the two-part analysis enunciated by the Court, attorney's fees may be recoverable if they are nonlitigation attorney's fees and if the work performed significantly benefits the remediation of hazardous releases, separate and distinct from reallocation of costs or protecting one's own interest as a defendant.(273) The ambiguity surviving this analysis will plague subsequent courts and can be easily envisioned after the Court's determination that nonlitigation attorney's fees expended in identifying other PRPs are recoverable but that such fees are not recoverable in negotiating a consent decree with the EPA. Both identifying other PRPs and negotiation of a consent decree with the EPA significantly benefit the remediation of hazardous releases and serve to reallocate costs and protect one's interest as a defendant.

The Supreme Court in Key Tronic did not address the ability of the government to recover attorney's fees under section 107; however, its analysis will have a profound effect on the government in subsequent government claims for attorney's fees. Government attorney's fees are arguably not recoverable pursuant to the Key Tronic analysis. The statutory language providing for government and private party response actions under section 107 is similar, and if a right of action is only implied for private parties, so it must be for the government. Moreover, section 104(b) provides that the government may undertake legal studies and recover the costs, but does not explicitly allow the recovery of attorney's fees. Following the Court's reasoning, this language is insufficient to recover fees.

Finally, the Key Tronic decision significantly revised the boundaries of the American rule. According to Key Tronic, implied rights of action should receive suspect classification and be subject to strict scrutiny. Therefore, in implied rights of action it would be "unusual if not unprecedented"(274) for the explicitness required by Alyeska to be met. Furthermore, the common benefit or fund exception will be used sparingly and does not apply in private party response actions. After Key Tronic, in order to comply with the explicit requirements of the American rule, Congress should use the magic words "attorney's fees."

Attorney's fees are not recoverable in private party response actions, but nonlitigation attorney's fees may be recoverable. Private parties seeking nonlitigation attorney's fees should emphasize that the work performed by counsel was done to promote the remediation effort and not principally to reallocate costs or defend against liability. Moreover, private parties defending against a government section 107 response action should be intimately aware of the Key Tronic analysis and should possess a firm understanding of its implications. Government litigation attorney's fee awards arguably will not withstand the Key Tronic analysis and could be denied. Furthermore, in advancing future environmental legislation or amending current legislation Congress should carefully consider its policy objectives and if it desires attorney's fee awards, it should indicate such intent by drafting the words "attorney's fees" into the legislation.

(1.)114 S. Ct. 1960 (1994) (Justice Stevens delivered the opinion of the Court, in which Justices Rehnquist, O'Connor, Kennedy, Souter, and Ginsburg joined. Justice Scalia filed an opinion dissenting in part, in which Justices Blackmun and Thomas joined).

(2.)42 U.S.C. [sections][sections] 9601-9675, [sections] 9607 (1988 & Supp. V 1993).

(3.)114 S. Ct. at 1967.

(4.)421 U.S. 240 (1975).

(5.)427 U.S. 160 (1976).

(6.)Key Tronic, 114 S. Ct. at 1966-67.

(7.)The Key Tronic decision will have significant effects on private party response actions. Although Key Tronic was the main polluter and proportionally the largest of the responsible parties in Key Tronic, the decision will also affect cases in which the plaintiff did nothing at all to contribute to the contamination except purchase the contaminated property.

(8.)Key Tronic, 114 S. Ct. at 1966-67.

(9.)Id. at 1967.

(10.)42 U.S.C. [sections] 9659 (1988).

(11.)Id. [sections] 9606(b)(2)(E) (refering to 28 U.S.C. [sections] 2412(b), which explicitly awards attorney's fees).

(12.)Key Tronic, 114 S. Ct. at 1967.

(13.)Id.

(14.)Id. at 1967-68.

(15.)42 U.S.C. [sections] 9607(a)(1)-(4)(B) (1988).

(16.)See id. [sections] 9607(a)(4)(B).

(17.)920 F.2d 1415 (8th Cir. 1990), cert. denied, 499 U.S. 937 (1991).

(18.)42 U.S.C. [sections] 9607(a)(4)(B). Support for the private party response action is also found in 42 U.S.C. [sections] 9607(a), which refers to an "action under this section," and 42 U.S.C. [sections] 9613(f), which refers to "any civil action ... under section 9607(a)."

(19.)The term "facility" is broadly defined in 42 U.S.C. [sections] 9601(9) (1988). Almost any place that hazardous waste is found can be classified as a facility. Burlington Northern R. Co. v. Woods Indus., Inc., 815 F. Supp. 1384, 1390 (E.D. Wash. 1993).

(20.)See, e.g., Jordan v. Southern Wood Piedmont Co., 805 F. Supp. 1575, 1578-79 (S.D. Ga. 1992); Barnes Landfill, Inc. v. Town of Highland, 802 F. Supp. 1087, 1088 (S.D.N.Y. 1992); Anspec Co. v. Johnson Controls, Inc., 788 F. Supp. 951, 955 (E.D. Mich. 1992).

Other courts, however, do not consider the fourth element, "response costs conform to the national contingency plan," as part of the prima facie case for threshold liability. Instead, the elements which must be proven are: 1) the site is a facility; 2) a release or threatened release of a hazardous substance has occurred at the facility; 3) the release or threatened release has caused the plaintiff to incur response costs; and 4) the defendant is a responsible party. See, e.g., FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 845 (10th Cir. 1993); Environmental Transp. Sys. v. ENSCO, Inc., 969 F.2d 503, 506 (7th Cir. 1992); Northwestern Mut. Life Ins. Co. v. Atlantic Research Corp., 847 F. Supp. 389, 395 (E.D. Va. 1994); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F. Supp. 1269, 1274 (E.D. Va. 1992). However, consistency with the national contingency plan is usually proven in the damages phase of the litigation. See Northwestern Mut. Life, 847 F. Supp. at 400; Chesapeake & Potomac Tel. Co. of Va., 814 F. Supp. at 1276.

(21.)See General Elec. Co., 920 F.2d at 1415.

(22.)42 U.S.C. [sections] 9607(a)(1)-(4) (1988).

(23.)42 U.S.C. [sections] 9607(a)(1)-(4).

(24.)42 U.S.C. [sections] 9601(22).

(25.)United States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir. 1993); United States v. Nuclear Corp., 814 F. Supp. 1552, 1557-58 (D.N.M. 1992); Louisiana Pacific Corp. v. ASARCO, Inc., 735 F. Supp. 358, 361 (N.D. Wash. 1990); United States v. Western Processing Co., 734 F. Supp. 930, 941-42 (W.D. Wash. 1990); Cose v. Getty Oil Co., 4 F.3d 700, 708-09 (9th Cir. 1993).

(26.)Northwestern Mut. Life Ins. Co. v. Atlantic Research Corp., 847 F. Supp. 389, 397 (E.D. Va. 1994).

(27.)Federal Water Pollution Control Act, 33 U.S.C. [sections] 1321(b)(2)(A) (1988).

(28.)42 U.S.C. [sections] 6921 (1988).

(29.)33 U.S.C. [sections] 1317(a) (1988).

(30.)42 U.S.C. [sections] 7412 (1988).

(31.)15 U.S.C. [sections] 2606 (1988).

(32.)42 U.S.C. [sections] 9601(14) (1988).

(33.)Id. [sections] 9607(a)(3).

(34.)Id. [sections] 9601(25). Enforcement activities are arguably included within response actions, but because this contention is a key argument in supporting an award of attorney's fees, it will be addressed later. See infra part III.C.1.

(35.)Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 711 (D. Kan. 1991); Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 1068 (M.D. Pa. 1988).

(36.)42 U.S.C. [sections] 9601(23); Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir. 1993); Hatco Corp. v. W.R. Grace & Co.--Conn., 849 F. Supp. 931, 962 (D.N.J. 1994); United States v. American Color and Chem. Corp., 832 F. Supp. 106, 109 (M.D. Pa. 1993); Tri-County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 991 (E.D. Pa. 1992); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 706 (D.N.J. 1988).

(37.)42 U.S.C. [sections] 9601(24); Hatco Corp. v. W.R. Grace & Co.--Conn., 801 F. Supp. 1309, 1332 (D.N.J. 1992); Tri-County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 991 (E.D. Pa. 1992); Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 711 (D. Kan. 1991); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 706 (D.N.J. 1988).

(38.)See generally American Color and Chem. Corp., 832 F. Supp. at 109 (M.D. Pa. 1993); Hatco Corp., 801 F. Supp. at 1332.

(39.)42 U.S.C. [sections] 9601(24) (1988).

(40.)See United States v. Bogas, 920 F.2d 363, 369 (6th Cir. 1990); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989); Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 840 F.2d 691, 695 (9th Cir. 1988); Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 887, 892 (9th Cir. 1986); Northwestern Mut. Life Ins. Co. v. Atlantic Research Corp., 847 F. Supp. 389, 396 (E.D. Va. 1994); Marriott Corp. v. Simkins Indus., Inc., 825 F. Supp. 1575, 1581 (S.D. Fla. 1993); HRW Systems, Inc. v. Washington Gas Light Co., 823 F. Supp. 318 (D. Md. 1993); Amcast Indus. Corp. v. Detrex Corp., 822 F. Supp. 545, 554 (N.D. Ind. 1992), aff'd in part, 2 F.3d 746 (7th Cir. 1993), cert. denied, 114 S. Ct. 691 (1994); Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 711 (D. Kan. 1991); Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1250 (M.D. Pa. 1990); Carlyle Piermont Corp. v. Federal Paperboard Co., 742 F. Supp. 814 (S.D.N.Y. 1990); Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 795 (D.N.J. 1989); Southland Corp. v. Ashland Oil Co., 696 F. Supp. 994, 1000 (D.N.J. 1988); Brewer v. Raven, 680 F. Supp. 1176, 1179 (M.D. Tenn. 1988); Artesian Water Co. v. Newcastle County, 659 F. Supp. 1269, 1286-87 (D. Del. 1987), aff'd., 851 F.2d 643 (3d Cir. 1988).

(41.)Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1568 (5th Cir. 1988); see also, United States v. Hardage, 750 F. Supp. 1460, 1519 (W.D. Okla. 1990), aff'd, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 114 S. Ct. 300 (1993).

(42.)Hardage, 750 F. Supp. at 1519; Artesian Water Co., 659 F. Supp. at 1287.

(43.)Tanglewood East Homeowners, 849 F.2d at 1568.

(44.)Artesian Water Co., 851 F.2d at 651 (monitoring and evaluation cost covered); Tanglewood East Homeowners, 849 F.2d at 1568; Carlyle Piermont Corp., 742 F. Supp. at 813 (monitoring costs covered); City of New York v. Exxon Corp., 633 F. Supp. 609, 617-18 (S.D.N.Y. 1986) (air quality monitoring covered); In re Allegheny Intern, 126 B.R. 919, 926 (W.D. Pa. 1991), aff'd sub nom. Allegheny Int'l v. Al Tech Specialty Steel Corp., 950 F.2d 721 (3d Cir. 1991). But see Lutz v. Chromatex, Inc., 718 F. Supp. 413, 417-18 (M.D. Pa. 1989) (holding that biological monitoring of residents' physical condition caused by alleged release of toxic chemicals into their wells was not covered as "response costs").

(45.)Amcast Indus. Corp., 822 F. Supp. at 554 (holding that $55,992.28 in labor expenses and office supplies attributable to response action recoverable); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 706 (D.N.J. 1988) (allowing claim to proceed for recovery of supervisory costs by T & E's president for monitoring a radiation problem). Contra Hardage, 750 F. Supp. at 1519 (finding plaintiff failed to meet burden of proof on claim to recover for oversight of EPA work).

(46.)Piccolini v. Simons Wrecking, 686 F. Supp. 1063, 1068 (M.D. Pa. 1988); Wehner v. Syntex Corp., 681 F. Supp. 651, 653 (N.D. Cal. 1987). Other costs generally not recoverable include transportation expenses, attendance at public meetings, and participation in citizens groups formed to aid in the investigation of cleanup efforts. Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1250 (M.D. Pa. 1990).

(47.)Medical monitoring is generally not recoverable. Daigle v. Shell Oil Co., 972 F.2d 1527, 1532-33 (10th Cir. 1992); Price v. United States Navy, 818 F. Supp. 1322, 1323 (S.D. Cal. 1992); Cook v. Rockwell Int'l, 755 F. Supp. 1468, 1473-74 (D. Colo. 1991); Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 714 (D. Kan. 1991); Ambrogi, 750 F. Supp. at 1245-50; Werlein v. United States, 746 F. Supp. 887, 901-04 (D. Minn. 1990), vacated on other grounds, 793 F. Supp. 898 (D. Minn. 1992); Chromatex, Inc., 718 F. Supp. at 417-18. Other courts draw a distinction between whether the medical monitoring relates to public health or not. Brewer v. Raven, 680 F. Supp. 1176, 1179 (M.D. Tenn. 1988).

(48.)Regan v. Cherry Corp., 706 F. Supp. 145, 151 (D.R.I. 1989). Under 42 U.S.C. [sections] 9607(c)(3), if a responsible party fails, without sufficient cause, to properly provide removal or remedial action subsequent to a release or threat of a release of a hazardous substance, such party may be liable to the government for punitive damages. See United States v. Parsons, 936 F.2d 526 (11th Cir. 1991).

(49.)42 U.S.C. [sections] 9607(a)(4)(B) (1988); Louisiana-Pacific Corp. v. Beazer Materials & Servs., Inc., 811 F. Supp. 1421, 1425 (E.D. Cal. 1993); Jordan v. Southern Wood Piedmont Co., 805 F. Supp. 1575, 1579 (S.D. Ga. 1992); Bunger v. Hartman, 797 F. Supp. 968, 973 (S.D. Fla. 1992); Barnes Landfill, Inc. v. Town of Highland, 802 F. Supp. 1087, 1088 (S.D.N.Y. 1992); Anspec Co. v. Johnson Controls, Inc., 788 F. Supp. 951, 955 (E.D. Mich. 1992); United States v. Gurley Ref. Co., 788 F. Supp. 1473, 1481 (E.D. Ark. 1992); In re Hanford Nuclear Reservation Litig., 780 F. Supp. 1551, 1565-66 (E.D. Wash. 1991); Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519, 1536 (N.D. Ind. 1991), aff'd in part, 2 F.3d 746 (7th Cir. 1993), cert. denied, 114 S. Ct. 691 (1994).

(50.)See Artesian Water Co. v. Newcastle County, 659 F. Supp. 1269, 1291-92 (D. Del. 1987), aff'd., 851 F.2d 643 (3rd Cir. 1988); United States v. Conservation Chem. Co., 619 F. Supp. 162, 165 (D. Mo. 1985); United States v. Wade, 577 F. Supp. 1326, 1330 (E.D. Pa. 1983). But see Ambrogi, 750 F. Supp. at 1253-54. See generally, William B. Johnson, Annotation, Application of Requirement in [sections] 107(a) of Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. [sections] 9607(a)) That Private Cost-Recovery Actions Be Consistent with National Contingency Plan, 107 A.L.R. FED. 568 (1992).

(51.)Carlyle Piermont Corp. v. Federal Paperboard Co., Inc., 742 F. Supp. 814, 821-22 (S.D.N.Y. 1990); see also Donahey v. Bogle, 987 F.2d 1250, 1255 (6th Cir. 1993), cert. denied, 114 S. Ct. 636 (1993), cert. granted and judgment vacated, 114 S. Ct. 2668 (1994); Marriott Corp. v. Simkins Indus., Inc., 825 F. Supp. 1575, 1580-81 (S.D. Fla. 1993).

(52.)Artesian Water Co., 659 F. Supp. at 1292 (holding, in response to Artesian's motion for partial summary judgment on liability, that the motion was "dependent on the existence of some recoverable damages" or, in other words, "some response costs incurred [must be] consistent with the NCP"). See also Bunger, 797 F. Supp. at 973 (compliance with the NCP is one factor which a private litigant must establish before it may recover from a responsible party).

(53.)See Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 796-98 (D.N.J. 1989).

(54.)Hatco Corp. v. W.R. Grace & Co.--Conn., 849 F. Supp. 931, 961 (D.N.J. 1994); City of Philadelphia v. Stepan Chem. Co., 748 F. Supp. 283, 290 (E.D. Pa. 1990).

(55.)Hatco, 849 F. Supp. at 796-98; 40 C.F.R. [sections] 300.700(c)(3)(i) (1993).

(56.)42 U.S.C. [sections] 9607(a)(1)-(4)(B) (1988); see also Dedham Water Co. v. Cumberland Farms Dairy, 889 F.2d 1146, 1150 (1st Cir. 1989), clarified, 901 F.2d 3 (1st Cir. 1990).

(57.)42 U.S.C. [sections] 9607(a)(1)-(4)(B) (1988) (emphasis added).

(58.)Id. [sections] 9601(25) (emphasis added).

(59.)Id. [sections] 9601(23), (24); see the discussion of removal and remedial actions infra part II.B.3.

(60.)In General Elec. Co. v. Litton Indus. Automation, Inc., 920 F.2d 1415, (8th Cir. 1990), cert. denied, 499 U.S. 937 (1991), the plaintiff spent $940,000 in performing removal and remedial actions at the site. Moreover, the plaintiff incurred $419,000 in attorney's fees and costs in forcing the defendant, Litton Industries, to reimburse it for cleaning up Litton's waste.

(61.)HRW Sys., Inc. v. Washington Gas Light Co., 823 F. Supp. 318, 346 (D. Md. 1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F. Supp. 1281, 1285 (E.D. Va. 1992).

(62.)Hastings Bldg. Prods., Inc. v. National Aluminum Corp., 815 F. Supp. 228, 233 (W.D. Mich. 1993) (attorney's fees are enforcement activities under CERCLA).

(63.)B.T.R. Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist. LEXIS 1720 (N.D. Ill. Feb. 16, 1993); Amcast Indus. Corp., 822 F. Supp. at 555.

(64.)General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1422 (8th Cir. 1990), cert denied, 499 U.S. 937 (1991); Gopher Oil Co. v. Union Oil Co., 757 F. Supp. 998 (D. Minn. 1991), remanded in part, 955 F.2d 519 (8th Cir. 1992).

(65.)Pease and Curren Ref., Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 952 (C.D. Cal. 1990). But see Santa Fe Pacific Realty Corp. v. United States, 780 F. Supp. 687, 694-96 (E.D. Cal. 1991); Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015, 1016 (9th Cir. 1993); Key Tronic Corp. v. United States, 984 F.2d 1025, 1027 (9th Cir. 1993), aff'd in part, rev'd in part, 114 S. Ct. 1960 (1994).

(66.)Bolin v. Cessna Aircraft Co., 759 F. Supp. 692 (D. Kan. 1991).

(67.)Donahey v. Bogle, 987 F.2d 1250, 1256 (1993), cert. denied, 114 S. Ct. 636 (1993), cert. granted and judgment vacated, 114 S. Ct. 2668 (1994).

(68.)General Elec. Co., 920 F.2d at 1415.

(69.)Leonard Partnership v. Town of Chenanyo, 779 F. Supp. 223, 229-30 (N.D.N.Y. 1991); New York v. SCA Servs., Inc., 754 F. Supp. 995, 1000 (S.D.N.Y. 1991).

(70.)Redland Soccer Club, Inc. v. Department of the Army of the United States, 801 F. Supp. 1432, 1437-38 (M.D. Pa. 1992); Fallowfield Dev. Corp. v. Strunk, 766 F. Supp. 335, 338 (E.D. Pa. 1991); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J. 1988).

(71.)Anspec Co. v. Johnson Controls, Inc., 788 F. Supp. 951, 957-58 (E.D. Mich. 1992); Abbott Lab. v. Thermo Chem., Inc., 790 F. Supp. 135, 141 (W.D. Mich. 1991).

(72.)Kauffman and Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468, 1478 (N.D. Cal. 1993); Santa Fe Pacific Realty Corp. v. United States, 780 F. Supp. 687, 694-96 (E.D. Cal. 1991).

(73.)United States v. Hardage, 750 F. Supp. 1460, 1511 (W.D. Okla. 1990), aff'd, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 114 S. Ct. 300 (1993).

(74.)In re Hemingway Transp., Inc., 993 F.2d 915, 934-35 (1st Cir. 1993), cert. denied, 114 S. Ct. 303 (1993).

(75.)Stanton Road Assocs. v. Lohrey Enters., 984 F.2d 1015, 1016 (9th Cir. 1993), cert. dismissed, 114 S. Ct. 652 (1994); Key Tronic Corp. v. United States, 984 F.2d 1025, 1027 (9th Cir. 1993), aff'd in part, rev'd in part, 114 S. Ct. 1960 (1994).

(76.)FMC Corp. v. Aero Indus., 998 F.2d 842, 847 (10th Cir. 1993).

(77.)JUDICIARY COMM., SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, H.R. REP. NO. 253(III), 99th Cong., 1st Sess. 15 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3038; e.g. General Electric Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1422 (8th Cir. 1990), cert denied, 499 U.S. 937 (1991); City & County of Denver v. Adolph Coors Co., 829 F. Supp. 340, 344 (D. Colo. 1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F. Supp. 1281, 1284 (E.D. Va. 1993); B.T.R. Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist. LEXIS 1720 at *4 n.2 (N.D. Ill. Feb. 12, 1993); Key Tronic Corp. v. United States, 766 F. Supp. 865, 871 (E.D. Wash. 1991), rev'd on other grounds, 984 F.2d 1025 (9th Cir. 1993), aff'd in part, rev'd in part, 114 S. Ct. 1960 (1994).

(78.)Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 262-63, 269 (1975).

(79.)See T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708, (D.N.J. 1988).

(80.)General Elec. Co., 920 F.2d at 1422.

(81.)B.T.R. Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist, LEXIS 1720, *10 (N.D. Ill. Feb. 12, 1993).

(82.)Id.

(83.)Pease and Curren Ref., Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 951 (C.D. Cal. 1990) (citing Pacific Mutual Life Ins. Co. v. American Guaranty Life Ins. Co., 722 F.2d 1498, 1500 (9th Cir. 1984)).

(84.)Id. (citing Pacific Mutual Life Ins. Co., 722 F.2d at 1500).

(85.)Id.

(86.)Id.

(87.)General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1422 (8th Cir. 1990), cert. denied, 499 U.S. 937 (1991).

(88.)United States v. Mottolo, 695 F. Supp. 615, 631 (D.N.H. 1988).

(89.)See, e.g., Hastings Bldg. Prods., Inc. v. National Aluminum Corp., 815 F. Supp. 228, 232-33 (W.D. Mich. 1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F. Supp. 1281, 1283 (E.D. Va. 1992).

(90.)Unlike Alyeska, the plaintiff in a private party response action can point to a specific statutory provision which entitles the plaintiff to recover all necessary response costs. Hastings Bldg. Prods. Inc., 815 F. Supp. at 232; Chesapeake & Potomac Tel. Co., 814 F. Supp. at 1283.

(91.)42 U.S.C. [sections] 9601(25) (1988).

(92.)See, e.g., H.R. REP. No. 253(III), 99th Cong., 1st Sess. 15 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3038; General Elec. Co., 920 F.2d at 1422; City & County of Denver v. Adolph Coors Co., 829 F. Supp. 340, 344 (D. Colo. 1993); Chesapeake & Potomac Tel. Co., 814 F. Supp. at 1284; B.T.R. Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist. LEXIS 1720 at *4 n.2 (N.D. Ill. Feb. 12, 1993).

(93.)United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 1112 (D. Minn. 1982).

(94.)See General Elec. Co., 920 F.2d at 1422; Chesapeake & Potomac Tel. Co., 814 F. Supp. at 1284.

(95.)Chesapeake & Potomac Tel. Co., 814 F. Supp. at 1284.

(96.)42 U.S.C. [sections] 9601(25) (1988).

(97.)Pub. L. No. 96-510, [sections] 101, 94 Stat. 2767 (formerly codified at 42 U.S.C. [sections] 9601(25) (1983) (amended 1988 to include enforcement activities related to removal and remedial actions)).

(98.)ENERGY AND COMMERCE COMM., SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, H.R. REP. No. 253(I), 99th Cong., 1st Sess. 66-67 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2848-49.

(99.)Fallowfield Dev. Corp. v. Strunk, No. 89-8644, 1990 U.S. Dist. LEXIS 4820 at *15-18 (E.D. Pa. April 23, 1990). But see B.T.R. Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist. LEXIS 1720 (N.D. Ill. Feb. 12, 1993).

(100.)See H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3278.

(101.)See Regan v. Cherry Corp., 706 F. Supp. 145, 148-50 (D.R.I. 1989). See the government's argument in Key Tronic, where the government argued that private parties cannot incur enforcement activity cost. 766 F. Supp. 865, 871 (E.D. Wash. 1991); see also United States v. Hardage, 750 F. Supp. 1460, 1511 (W.D. Okla. 1990), aff'd, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 114 S. Ct. 300 (1993); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 n.13 (D.N.J. 1988).

(102.)42 U.S.C. [sections] 9604(b) (1988) provides that the President may "undertake such planning, legal,...and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the cost thereof."

(103.)T & E Indus., 680 F. Supp. at 708 (finding no analogous provision to [sections] 104 that would allow a private party to recover its attorney's fees).

(104.)42 U.S.C. [sections] 9659(a)(1) (1988).

(105.)Id. [sections] 9659(c), (f).

(106.)Runyon v. McCrary, 427 U.S. 160, 185 (1976); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 262 (1975).

(107.)Alyeska, 421 U.S. 240, 262.

(108.)Id. at 271.

(109.)According to [sections] 104(b), the United States President may "undertake such planning...as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof." 42 U.S.C. [sections] 9604(b)(1) (1988).

(110.)Under [sections] 310, "[t]he court, in issuing any final order and any action brought pursuant to this section, may award cost of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines that such an award is appropriate." Id. [sections] 9659(f).

(111.)Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir. 1993).

(112.)See id.; Abbott Lab. v. Thermo Chem., Inc., 790 F. Supp. 135, 142 (W.D. Mich. 1991); United States v. Hardage, 750 F. Supp. 1460, 1511 (W.D. Okla. 1990), aff'd, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 114 S. Ct. 300 (1993); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J. 1988).

(113.)Stanton Rd. Assocs., 984 F.2d at 1020, T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J. 1988).

(114.)Regan v. Cherry Corp., 706 F. Supp. 145, 149 (D.R.I. 1989); see Santa Fe Pacific Realty Corp. v. United States, 780 F. Supp. 687, 695 (E.D. Cal. 1991) (quoting Regan, 706 F. Supp. at 148-50); Fallowfield Dev. Corp. v. Strunk, 766 F. Supp. 335, 338, (E.D. Pa. 1991); New York v. S.C.A. Servs., Inc., 754 F. Supp. 995, 1000 (S.D.N.Y. 1991).

(115.)Santa Fe Pacific Realty Corp. v. United States, 780 F. Supp. 687, 696 (E.D. Cal. 1991).

(116.)114 S. Ct. 1960 (1994).

(117.)Id. at 1966-68.

(118.)42 U.S.C. [sections] 9622(g)(5) (1988).

(119.)In an earlier action brought by Key Tronic against the United States for contribution from a judgment entered against Key Tronic arising out of an action brought by neighbors of the landfill, the District Court for the Eastern District of Washington found Key Tronic liable for 90% of the contamination and the United States responsible for 10%. Key Tronic Corp. v. United States, No. C-87-20-JLQ (E.D. Wash. Nov 7, 1989).

(120.)The following claims survived the consent decree: 1) costs and fees incurred by Key Tronic's attorneys and investigators in searching for PRPs and costs and fees incurred by Key Tronic's attorneys in negotiating a consent decree with the EPA in the amount of $365,649; 2) the salary of Key Tronic's General Counsel and Secretary for time spent supervising the PRP search and negotiating the consent decree in the amount of $70,000; 3) attorney's fees incurred by Key Tronic in pursuing its [sections] 107 private party response action against the United States in the amount of $73,500; and 4) prejudgment interest on the excepted claims in the amount of $12,000. Brief for the United States at 5, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(121.)Key Tronic Corp. v. United States, 766 F. Supp. 865, 871-72 (E.D. Wash. 1991), rev'd, 984 F.2d 1025 (9th Cir. 1993), aff'd in part, rev'd in part, 114 S. Ct. 1960 (1994).

(122.)Id. at 871.

(123.)Key Tronic Corp. v. United States, 984 F.2d 1025, 1027-28 (9th Cir. 1993), aff'd in part, rev'd in part, 114 S. Ct. 1960 (1994).

(124.)114 S. Ct. 1960 (1994).

(125.)Id. at 1966-67.

(126.)Id. at 1965 (quoting Runyon v. McCrary, 427 U.S. 160, 185 (1976) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975))).

(127.)Id. at 1966-67.

(128.)Id. at 1965 n.7 (citing Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir. 1985)).

(129.)Id. at 1966-67.

(130.)Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975).

(131.)Key Tronic, 114 S. Ct. at 1966-67.

(132.)The Court also noted that CERCLA expressly authorizes attorney fee awards in employee discrimination cases based on their disclosure of statutory violations under 42 U.S.C. [sections] 9610(c) (1988). Id. at 1966.

(133.)42 U.S.C. [sections] 9659(f) (1988).

(134.)Id. [sections] 9659(f).

(135.)Id. [sections] 9606(b)(2)(E).

(136.)Id. [sections] 9606(b)(2)(E).

(137.)Equal Access to Justice Act, 28 U.S.C. [sections] 2412(d)(2)(A) (1988).

(138.)Key Tronic, 114 S. Ct. at 1967.

(139.)Id.

(140.)Id.

(141.)Id.

(142.)Id.

(143.)Id.

(144.)Id. at 1967-68.

(145.)Id. at 1968.

(146.)Id.

(147.)See id. at 1965; see also id. at 1969 (Scalia, J., dissenting).

(148.)Id. at 1965.

(149.)Id. at 1966-67.

(150.)Id. at 1965.

(151.)Id. at 1965 n.7 (citing Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir. 1985)).

(152.)544 F. Supp. 1135 (E.D. Pa. 1982).

(153.)Id. at 1143 (emphasis added).

(154.)596 F. Supp. 283 (N.D. Cal. 1984).

(155.)Id. at 288.

(156.)Jones v. Inmont Corp., 584 F. Supp. 1425, 1428 (S.D. Ohio 1984).

(157.)Bulk Distrib. Ctrs., Inc. v. Monsanto Co., 589 F. Supp. 1437, 1443 (S.D. Fla. 1984).

(158.)See Transamerica Mortgage Advisors v. Lewis, Inc., 444 U.S. 11, 15-16 (1979); Richardson v. Southwest Miss. Regional Medical Ctr., 794 F. Supp. 198, 200-01 (S.D. Miss. 1992); Chemung Canal Trust Co. v. Sovran Bank/Md., 753 F. Supp. 81, 84 (W.D.N.Y. 1990), aff'd in part, rev'd in part, 939 F.2d 12 (2d Cir. 1991), cert. denied, 112 S. Ct. 3014 (1992).

(159.)Transamerica, 444 U.S. at 15-16; Richardson, 794 F. Supp. at 200-01; Chemung, 753 F. Supp. at 84.

(160.)42 U.S.C. [sections] 9607(a)(4)(B) (1988) (emphasis added).

(161.)761 F.2d 311 (6th Cir. 1985).

(162.)Id. at 317 (emphasis added).

(163.)Key Tronic, 114 S. Ct. at 1968 (Scalia, J., dissenting).

(164.)Id. (citations omitted).

(165.)Id. at 1968 n.* (Scalia, J., dissenting).

(166.)Id. at 1965 (citations omitted).

(167.)As quoted above, the Supreme Court in Key Tronic held out [sections] 113(f) as expressly creating a cause of action for contribution. Id. Section 113(f) provides:

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) ... during or following any civil action under section 9606 ... or under section 9607(a) .... Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law.

42 U.S.C. [sections] 9613(f)(1) (1988). Section 107(a)(4)(B), on the other hand, provides that responsible parties are liable for "any other necessary costs of response incurred by any other person." Section 107(a) continues that "[t]he amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D)." 42 U.S.C. [sections] 9607(a) (1988).

(168.)California v. Sierra Club, 451 U.S. 287, 293-298 (1981); see also Cort v. Ash, 422 U.S. 66, 78 (1975); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1573 (11th Cir. 1993); Stupy v. United States Postal Serv., 951 F.2d 1079, 1081 (9th Cir. 1991).

(169.)Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 23-24 (1979) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76 (1979)).

(170.)If one adopts the Court's analysis that implied rights of action receive suspect classification under the American rule, the explicit language might not be sufficient.

(171.)30 U.S.C. [sections] 185 (1988 & Supp. V 1993).

(172.)42 U.S.C. [sections][sections] 4321-4370b (1988 & Supp. V 1993).

(173.)Alyeska, 421 U.S. 240, 242-243 (1975).

(174.)Id. at 245.

(175.)In Alyeska, the plaintiffs sought injunctive relief through judicial review. Id. at 242. Judicial review is generally available unless precluded by Congress. See Abbott Lab. v. Gardner, 387 U.S. 136, 139-41 (1967). As noted by some commentators, "[t]he notion of 'private right of action' is largely inapplicable to a challenge to a federal agency action. It is a concept that stems from the desire of one private citizen to sue another private citizen for a violation of a statute." JOHN E. BONINE & THOMAS O. MCGARITY, THE LAW OF ENVIRONMENTAL PROTECTION 854 (1984).

(176.)42 U.S.C. [sections] 9659(f) (1988).

(177.)Id.

(178.)Id. [section] 96069(b)(2)(E).

(179.)Id.

(180.)28 U.S.C. [sections] 2412(d)(2)(A) (1988).

(181.)United States v. Northeastern Pharm. & Chem. Co., 579 F. Supp. 823, 851 (W.D. Mo. 1984), aff'd in part, rev'd in part, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); see also Abbott Lab. v. Thermo Chem., Inc., 790 F. Supp. 135, 141 (W.D. Mich. 1991); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 1009 (D.S.C. 1984), aff'd in part, vacated in part sub nom. United States v. Monsanto Co., 858 F.2d 160 (4th Cir. (1988), cert. denied, 490 U.S. 1106 (1989).

(182.)42 U.S.C. [sections] 9601(23) (1988).

(183.)Id. [sections] 9604(b).

(184.)Id. [sections] 9604(b)(1) (emphasis added).

(185.)See T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 707-08 (D.N.J. 1988); South Carolina Recycling and Disposal, Inc., 653 F. Supp. at 1009; Northeastern Pharm. & Chem. Co., 579 F. Supp. at 851.

(186.)See Key Tronic, 114 S. Ct. at 1967.

(187.)Id.

(188.)Id.; see also id. at 1968-69 (Scalia, J., dissenting).

(189.)Pease & Curren Ref., Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 951 (C.D. Cal. 1990).

(190.)Id.

(191.)See generally Regan v. Cherry Corp., 706 F. Supp. 145, 148-50 (D.R.I. 1989); T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 n.13 (D.N.J. 1988).

(192.)See United States v. Hardage, 750 F. Supp. 1460, 1511 (W.D. Okda. 1990), aff'd, 982 F.2d 1436 (10th Cir. 1992), cert. denied, 114 S. Ct. 300 (1993); Regan, 706 F. Supp. at 148-50; T & E Indus., 680 F. Supp. at 708 n.13. See also the government's argument in Key Tronic, where the government argued that private parties cannot incur enforcement activity costs. Key Tronic Corp. v. United States, 766 F. Supp. 865, 871 (E.D. Wash. 1991).

Section 107(a) of CERCLA, 42 U.S.C. [sections] 9607, establishes a private right of action for recovery of necessary response costs. Private party response actions are distinguishable from citizen suits under [sections] 310, 42 U.S.C. [sections] 9659, in which private parties sue to enjoin CERCLA violations. Plaintiffs in private party response actions cannot seek civil penalties or injunctive relief under [sections] 107. Brewer v. Raven, 680 F. Supp. 1176, 1180 (M.D. Tenn. 1988). On the other hand, plaintiffs in citizen suit actions under [sections] 310 can seek injunctive relief forcing the responsible party to remediate contamination and pay civil penalties. Regan, 706 F. Supp. at 148-50. See generally Hastings Bldg. Prods., Inc. v. National Aluminum Corp., 815 F. Supp. 228, 230 (W.D. Mich. 1993).

(193.)Brief for the United States at 22-23, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(194.)Id. at 18-19.

(195.)Id.

(196.)Id.

(197.)Id.

(198.)Id. at 19.

(199.)Id. at 18-19 n.16.

(200.)Id. at 20-21.

(201.)42 U.S.C. [sections] 9601(25) (1988).

(202.)Key Tronic, 114 S. Ct. at 1969 (citations omitted). For reference to the Clayton Act, see Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 109 (1986).

(203.)Record at 3-4, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(204.)See Hastings Bldg. Prods. Inc. v. National Aluminum Corp., 815 F. Supp. 228, 232 (W.D. Mich. 1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F. Supp. 1281, 1283 (E.D. Va. 1992); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d. 1074, 1081 (1st Cir. 1986).

(205.)See infra note 212.

(206.)Brief for the United States at 18-19, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(207.)42 U.S.C. [sections] 9607(a)(1) (1988).

(208.)See supra Part II.A.

(209.)See also Gopher Oil Co. v. Union Oil Co., 757 F. Supp. 998 (D. Minn. 1991), remanded in part, 955 F.2d 519 (8th Cir. 1992). In Gopher Oil Co., Gopher Oil was required as the current owner to clean up a five acre site it purchased from Union Oil in 1980. The site had previously been owned by W. H. Barber Co. as a bulk oil and chemical facility. Subsequently, the facility was used for operations by Union Oil as well as American Mineral Spirits Company. As a result, the site had become substantially contaminated. Union Oil misrepresented material facts about the condition of the site to Gopher Oil. However, Gopher Oil, as current owner of the site, was required to remediate the site. Id. at 1001.

(210.)Runyon v. McCrary, 427 U.S. 160, 184 (1976).

(211.)Id. at 185.

(212.)Arguably, enforcement activities include nonlitigation expenses such as identifying other potentially responsible parties, as discussed in [sections] IV of the Key Tronic decision. See infra part V.A.4. The Court does not reference enforcement activities in its discussion in [sections] IV, but uses the terminology "necessary cost of response" instead. Key Tronic, 114 S. Ct. at 1968.

(213.)Key Tronic, 114 S. Ct. at 1967.

(214.)Id. at 1968.

(215.)Id. at 1967.

(216.)Id.

(217.)Id. (citing FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 847 (10th Cir. 1993)).

(218.)In the few cases addressing the issue of nonlitigation attorney's fees, the general analysis appears to be that nonlitigation attorney's fees are recoverable if they are necessary to the containment and cleanup of hazardous releases. See FMC Corp., 998 F.2d at 848; Hatco Corp. v. W.R. Grace & Co.--Conn., 849 F. Supp. 931, 971 (D.N.J. 1994).

(219.)Key Tronic, 114 S. Ct. at 1968.

(220.)Brief for Petitioner at 3, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(221.)Key Tronic, 114 S. Ct. at 1968.

(222.)Perhaps the Tenth Circuit Court of Appeals in FMC Corp., 998 F.2d at 848, reinforced a better analysis used in United States v. Hardage, 982 F.2d 1436, 1448 (10th Cir. 1992), cert. denied sub nom. Advance Chem. Co. v. United States, 114 S. Ct. 300 (1993), that the line of recoverabilty be drawn where the private party incurs response costs solely to defend against the government's injunction action.

(223.)Brief for the United States at 27, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(224.)Id. at 28.

(225.)Key Tronic, 114 S. Ct. at 1966.

(226.)H.R. REP. No. 253, 99th Cong., 1st Sess., pt. 1, at 66-67 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2848-49; see Key Tronic, 114 S. Ct. at 1966 n.10.

(227.)42 U.S.C. [sections] 9607(a)(4)(A) (1988).

(228.)Id. [sections] 9601 (23).

(229.)Id. [sections] 9604(b)(1) (emphasis added).

(230.)See T & E Indus. v. Safety Light Corp., 680 F. Supp. 696, 708 (D.N.J. 1988); United States v. Mottolo, 695 F. Supp. 615, 631 (D.N.H. 1988); United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984, 1009 (D.S.C. 1984), aff'd in part, vacated in part sub nom. United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert denied, 490 U.S. 1106 (1989); United States v. Northeastern Pharm. & Chem. Co., 579 F. Supp. 823, 851, aff'd in part, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); cf. United States v. Mexico Feed & Seed Co., 729 F. Supp. 1250, 1253-54 (E.D. Mo. 1990) (addition of "enforcement activities" to definition of "response" supports recovery of enforcement costs).

(231.)See Mexico Feed & Seed Co., 729 F. Supp. at 1253-54.

(232.)42 U.S.C. [sections] 9607(a)(1)-(4)(A) (1988).

(233.)Key Tronic, 114 S. Ct. at 1965-66.

(234.)Compare id. at 1966 n.11 (noting that [sections] 107 gives an implied cause of action).

(235.)Id.

(236.)Id. at 1965 (citations omitted).

(237.)42 U.S.C. [sections] 9607(a) (1988).

(238.)Id. [sections] 9613(f).

(239.)Id. [sections] 9613(f)(1) (emphasis added).

(240.)It must be emphasized that the Court's opinion in Key Tronic that the government response action is an express cause of action is dictum and courts are not bound by the Supreme Court's determination.

(241.)42 U.S.C. [sections] 9659(f) (1988).

(242.)Id. [sections] 9606(b)(2)(E).

(243.)Key Tronic, 114 S. Ct. at 1967.

(244.)See BTR Dunlop, Inc. v. Rockwell Int'l Corp., No. 90-C-7414, 1993 U.S. Dist. LEXIS 1720 (N.D. Ill. Feb. 12, 1993), which states:

The statute could conceivably be read as authorizing the President to recover costs of legal studies or investigations (whatever legal studies or investigations are). But surely a more natural reading is that the statute authorizes the President, among other things, to undertake legal studies or investigations to plan and direct response actions, and to recover the costs of such response actions. Read this way, this section provides for recovery of the costs of response actions, but says nothing explicit about whether the legal services incurred in connection with such response actions are compensable. Section 9607, held up by many courts as an example of how clear Congress can be when it wants to provide for fee-shifting, is, when carefully phrased, a good deal less explicit than the provisions relied on by plaintiffs here.

Id. at *7-*8.

(245.)42 U.S.C. [sections] 9604(b)(1) (1988) (emphasis added).

(246.)See H.R. REP. No. 253, 99th Cong., 1st Sess., pt. 1, at 66-67 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2848-49.

(247.)See H.R. CONF. REP. No. 962, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3276.

(248.)Key Tronic, 114 S. Ct. at 1967.

(249.)Id. (citation omitted).

(250.)Id.

(251.)Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). The Supreme Court first announced the American rule in Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796).

(252.)Alyeska, 421 U.S. at 247.

(253.)427 U.S. 160 (1976).

(254.)Id. at 185.

(255.)Key Tronic, 114 S. Ct. at 1966-67.

(256.)Id.

(257.)See 42 U.S.C. [sections] 9601(25) (1988) (adding "and attorney's fees" to the statutory definition).

(258.)Key Tronic, 114 S. Ct. at 1967.

(259.)See id. at 1968-69 (Scalia, J., dissenting).

(260.)Id. at 1966 n.11.

(261.)42 U.S.C. [sections] 9613(f)(1) (1988).

(262.)Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257 (1975).

(263.)See Trustees v. Greenough, 105 U.S. 527 (1881).

(264.)Brief for Petitioner at 25, Key Tronic, 114 S. Ct. 1960 (1994) (No. 93-376).

(265.)Id. at 25-26.

(266.)The common fund exception was not a subject of the Alyeska litigation. Alyeska, 427 U.S. at 259.

(267.)Key Tronic, 114 S. Ct. at 1967.

(268.)42 U.S.C. [sections] 9659(f) (1988).

(269.)Id. [sections] 9606(b)(2)(E).

(270.)28 U.S.C. [sections] 2412(d)(2)(A) (1988).

(271.)42 U.S.C. [sections] 9604(b)(1) (1988).

(272.)Key Tronic, 114 S. Ct. at 1966-67.

(273.)Id. at 1967-68.

(274.)Id. at 1967.
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