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I Comment#20• <br /> 2 Section Addressed: Section XIII, Oversight, Compliance Review and Comment <br /> 3 Page 22, Line 3 to Page 23, Line 10 <br /> 4 Summary of Comment Received: <br /> 5 The Commenters, the Equipment Manufacturers, assert that pursuant to the holding <br /> 6 in Key Tronic Corp. v. United States, 114 S.Ct 1960 (1994), plaintiff LPL is not entitled, as a <br /> 7 matter of law,to recover its attorneys fees associated with prosecuting a private cost recovery <br /> 8 action under CERCLA or with negotiations among plaintiff LPL,the Settling Dry Cleaning <br /> 9 Defendants or any governmental agency under CERCLA. The Commenters observe and object to <br /> 10 the fact that,notwithstanding the holding in Key Tronic,the Settling Dry Cleaning Defendants <br /> 1 I have agreed to reimburse plaintiff LPL for its past attorneys fees and to pay for future fees that are <br /> 12 properly attributable to CERCLA cost recovery. <br /> 13 Settling Parties' Response: <br /> 14 The Settling Parties acknowledge that the U.S. Supreme Court decision in Key <br /> 15 Tronic limits the extent to which attorneys' fees may be recoverable in a private cost recovery <br /> 16 action under CERCLA. Prior to the issuance of this decision, however, the Settling Parties <br /> 17 reached an agreement settling multiple claims and causes of action, not the least of which were <br /> 18 claims pursuant to RCRA § 7002 which expressly provides for recovery of attorneys' fees. 42 <br /> 19 U.S.C. § 6972(e). In addition, plaintiff LPL had asserted claims for public nuisance which also <br /> 20 exposed the Settling Dry Cleaning Defendants to additional liability for attorneys' fees. <br /> 21 Accordingly,the Settling Dry Cleaning Defendants faced potential liability for attorneys' fees <br /> 22 which was not abated by the holding in Key Tronic. <br /> 23 Comment#21: <br /> 24 Section Addressed: Section XIII, Oversight, Compliance Review and Comment <br /> 25 Page 22, Line 3 to Page 23, Line 10 <br /> 26 Summary of Comment Received: <br /> 27 The Commenters, the Equipment Manufacturers, state that plaintiff LPL should not <br /> 28 be permitted to pursue the Settling Dry Cleaning Defendants' claims against the Equipment <br /> JOINT SUMMARY OF PUBLIC COMMENTS&RESPONSES REGARDING FIRST FINAL CONSENT DECREE -27- <br /> 0009203.10 10/03/94 Q 10:43 AM <br />