Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a private party was entitled to recover costs incurred in a cleanup of contamination by a prior owner, but only if the costs were necessary and consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). Costs were necessary if incurred in response to a threat to human health or the environment. To comply with the NCP, the party must have completed a remedial investigation (RI), a feasibility study (FS), a record of decision (ROD), and an opportunity for public comment. Additionally, Kentucky required a baseline-risk assessment (BRA) if remediation did not include removal of the contamination. The Regional Airport Authority of Louisville and Jefferson County (the authority) (plaintiff) expanded an airport onto contaminated land owned by LFG, LLC, and Navistar International Transportation Corporation (collectively, LFG) (defendants). The authority began the work before obtaining public comments and preparing the RI/FS, and it never completed an ROD. Additionally, the authority departed from the recommendations of the RI/FS and chose not to remove the contamination, and it completed the runway construction before preparing the BRA. Kentucky belatedly approved the RI/FS and BRA. The authority filed a CERCLA action in federal district court to recover cleanup costs. The district court granted summary judgment for LFG, finding that the cleanup was not necessary and not in compliance with the NCP. The authority appealed.