United States Tenth Circuit

In a cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act, judgment for plaintiff U.S. is affirmed where: 1) defendant was unable to establish that the Army used the chemical at issue at the contested site; 2) the court reasonably chose not to credit the testimony of veterans who claimed the chemical was used by the Army; and 3) defendant failed to rebut the presumption that the EPA's efforts to list the site on the National Priorities List were consistent with a national contingency plan.

Appellate Information

• Decided 12/29/2009
• Published 12/29/2009

Judges

• MURPHY, Circuit Judge., Before MURPHY, EBEL, and HARTZ, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Robert M. Jackson, Honigman Miller Schwartz and Cohn LLP, Detroit, MI (Brian D. Wassom of Honigman Miller Schwartz and Cohn LLP, Detroit, MI; Stephen J. Torline and Derek T. Teeter of Husch Blackwell Sanders LLP, Kansas City, MO, with him on the briefs), for Appellant., Raymond B. Ludwiszewski, Peter E. Seley, and Michael K. Murphy, Gibson, Dunn & Crutcher LLP, Washington, DC, on the brief for Amicus Curiae in support of Appellant.


• For Appellees:
  
• Brian C. Toth, Attorney, Environment & Natural Resources Division, United States Department of Justice (Scott Pemberton, of Counsel, Regional Counsel for Region 7, United States Environmental Protection Agency; Catherine R. Sanders, Of Counsel, Office of Chief Counsel, United States Army Corps of Engineers; John C. Cruden, Acting Assistant Attorney General, Environment & Natural Resources Division; Sean Carman, Attorney, Environment & Natural Resources Division, United States Department of Justice; and Mary Whittle, Attorney, Environment & Natural Resources Division, United States Department of Justice, with him on the brief), Washington, DC, for Appellee.