ELR Citation: ELR 20574
No(s). 2:92-cv-487 (E.D. Tenn. Nov 23, 1996)

The court holds that a company that cleaned up a contaminated site but did not comply with the public-comment requirements of the national contingency plan (NCP) may not recover its response costs from a town under the Comprehensive Environmental Response, Compensation, and Liability Act. The company claimed that its noncompliance did not bar it from recovering, because its costs were incurred in a removal, as opposed to in a remedial action. The court holds that community-relations requirements are diminished, but not abolished, in a situation in which removal is required. Moreover, the company has failed to show that the costs it seeks to recover were for removal instead of for remedial action. The court holds that when a plaintiff seeks to absolve itself of any responsibility for community relations under the NCP by characterizing the response as a removal, the burden of showing facts to support such a characterization must rest on it. In the absence of any evidence to suggest that the company might carry its burden of proof in this regard, the town is entitled to summary judgment. The court finds that there is no genuine issue of material fact concerning the company's noncompliance with the NCP, and that it may not excuse such noncompliance on the ground that its response was a removal. Therefore, the company's recovery of response costs is limited to preliminary or investigative costs incurred before the commencement of any cleanup on the site.

Counsel for Plaintiff
J. Ronnie Greer
206 S. Irish St., Greeneville TN 37743
(423) 638-1221

Counsel for Defendant
Ronald W. Woods
Milligan & Coleman
NationsBank Bldg., Ste. 301, Greeneville TN 37744
(423) 639-6811