In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. That case involved a holding that the costs of investigating the presence of solvents in the groundwater above regulatory standards were not “necessary” response costs because the the state had declined to list the site on its Hazardous Sites Inventory. In a short, unpublished opinion, the Eleventh Circuit Court of Appeals recently overturned the district court decision and correctly ruled that the failure of a state to list a site on its Hazardous Sites Inventory was not a sufficient basis for concluding that the investigation of hazardous substances in groundwater was not necessary.
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