Stanton Road Associates v. Lohrey Enterprises, Electronic Valet Systems, Inc., David Lohrey, Nathan Pang

984 F.2d 1015 36 ERC 1081 , 61 USLW 2472 , 23 Envtl. L. Rep. 20,540 STANTON ROAD ASSOCIATES, Plaintiff-Appellee, v. LOHREY ENTERPRISES, Electronic Valet Systems, Inc., David Lohrey, Nathan Pang, Defendants-Appellants. No. 91-15729. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 2, 1992. Decided Jan. 28, 1993. Robert H. Bunzel, Bartko, Tarrant & Miller, San Francisco, CA, for defendants-appellants. Steven L. Hock, Thelen, Marrin, Johnson & Bridges, San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before: SNEED, ALARCON and CANBY, Circuit Judges. ALARCON, Circuit Judge: 1 Appellants Lohrey Enterprises, Inc., Electronic Valet Systems, Inc., David Lohrey, and Nathan Pang (collectively, "Lohrey") appeal from the award of attorneys' fees to Stanton Road under section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9607 (a)(4)(B). Lohrey also seeks reversal of the order requiring it to pay $1,100,000 in monetary damages to Stanton Road Associates ("Stanton Road") for deposit in an…

Appellants Lohrey Enterprises, Inc., Electronic Valet Systems, Inc., David Loh-rey, and Nathan Pang (collectively, “Loh-rey”) appeal from the award of attorneys’ fees to Stanton Road under section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERC-LA”), 42 U.S.C. § 9607 (a)(4)(B). Lohrey also seeks reversal of the order requiring it to pay $1,100,000 in monetary damages to Stanton Road Associates (“Stanton Road”) for deposit in an escrow account to fund the clean-up of Stanton Road’s property.

This case presents us with two novel issues. First, we must decide whether Congress has explicitly authorized attorneys’ fees to private litigants as part of the response costs incurred in cleaning up property contaminated by a hazardous substance. We are also confronted with the question regarding whether a district court may order a party found liable for contamination to pay monetary damages for deposit in an escrow account to fund the future clean-up of the contamination.

We conclude that Congress has not expressly provided for an award of attorneys’ fees to private parties seeking to recoup response costs under CERCLA.…

dissenting:

With all respect, I cannot agree with two major conclusions reached by the majority. In my view, plaintiff’s attorneys’ fees are properly recoverable under section 107(a)(4)(B) and the amended version of section 101(25) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607 (a)(4)(B) and 9601(25). In addition, I would not reserve the district court’s establishment of an escrow fund, nor would I reach the question of that court’s power to create such a fund, because I believe that this issue was never properly raised by the defendants in the district court. 1

*1023 Attorneys’ Fees

The plaintiff, Stanton Road, owns land that the defendants contaminated by repeated discharges of perchlorethelene over a period of years. Accordingly, Stanton Road is entitled under section 107(a)(4)(B) of CERCLA to recover from the defendants its “necessary costs of response.” When CERCLA was first enacted, “response” was defined in section 101(25), 42 U.S.C. § 9601 (25), as follows: “ ‘respond’ or ‘response’ means remove, removal, remedy, and remedial action.” Had this case arisen between 1980 and 1986, then, Stanton Road would have…