The federal Superfund statute allows a private person to recover "necessary costs of response incurred" by that person consistently with the governing regulation, the national contingency plan. A recent appellate decision, to be sure unreported and therefore not binding, raises the interesting question of what a person must do to "incur" a cost. The person in question was a law firm and this is an "environmental law practice" column, so the question may be doubly interesting.

Gallagher & Kennedy v. City of Phoenix, No. 23-15938 (9th Cir. Aug. 30, 2024) (unreported), addressed the law firm's claim under Section 107(a)(1-4)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), 42 U.S.C. Section 9607(a)(1-4)(B), to recover costs the law firm alleged it had incurred as part of an engagement by the Roosevelt Irrigation District. RID was formed in the 1920s by Maricopa County at the behest of a group of landowners controlling tens of thousands of acres for the purpose of assuring irrigation, and also power, in that portion of the county. The RID system includes groundwater supply wells.