Costs To Investigate Potential PFAS Contamination May Not Be "Necessary" Under CERCLA

On March 11, the United States District Court for the Southern District of Indiana denied a property owner's motion for partial summary judgment on its Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ Section 107 cost recovery claim.² The Court held that issues of fact remain as to whether the plaintiff's expenditures to investigate the potential presence of per- and polyfluoroalkyl substances (PFAS) were "necessary" response costs, as required under CERCLA Section 107, where the state regulator had not required PFAS investigation at the site.

Background

The case arises from historic contamination at a 5.5-acre industrial property in Indianapolis (Site). Defendant Battery Properties, Inc. (Battery) and its predecessors conducted manufacturing operations at the Site for approximately fifty years.³