ELR Citation: ELR 20297
No(s). 88-605-CIV-5-F (E.D.N.C. Sep 13, 1990)

The court holds that plaintiff in a private Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action failed to show that its response costs at a site in Oxford, North Carolina, were consistent with the national contingency plan (NCP). A property owner sought to recover CERCLA cleanup costs it incurred, and the previous occupants of the property moved for summary judgment claiming the owner could not show that its response costs were consistent with the NCP. The court first observes that although the standard of review for "consistency" with the NCP has been interpreted by the Environmental Protection Agency (EPA) and most courts to be "strict" compliance, some courts have adopted a substantial compliance standard. The court holds that substantial NCP compliance is not reducible to an inquiry into whether the cleanup was cost-efficient and environmentally sound, or whether the response measures promote the broader purposes of the NCP. A contrary approach would read the "consistent with the national contingency plan" requirement out of CERCLA §107(a). However, the court assumes arguendo that a private party may recover its response costs if it substantially complies with the NCP.

The court next holds that plaintiff's Oxford site cleanup was a remedial action under CERCLA §101(24), rather than a removal action. The Oxford site did not pose an immediate risk of harm to public health or the environment requiring a short-term response, plaintiff did not identify an urgent or immediate risk, and evidence reveals that plaintiff stated to EPA that the lagoon did not exhibit hazardous waste characteristics. Additionally, the timing of plaintiff's cleanup response shows a lack of urgent or exigent conditions. Plaintiff waited from April 1985, when it learned that the sludges were "listed wastes," until June 1987 to begin the lagoon cleanup. Moreover, EPA never recommended an enforcement action for the Oxford site prior to or during the cleanup, and North Carolina officials never made a public health assessment calling for immediate action. Although plaintiff's expert proposed that the cleanup should be classified as a removal action, the proper classification of a cleanup is an issue of law that is not appropriate for expert testimony.

The court next holds that plaintiff's cleanup at the Oxford site did not come remotely close to substantially complying with the NCP. While the site investigation phase of a remedial action typically involves sufficient sampling, analysis, and data collection to provide reliable information on the nature, extent, and amount of contamination, the potential exposure routes, likelihood of exposure via those pathways, and the risk of harm from contaminants, plaintiff's investigation was not consistent with this process. Plaintiff did not conduct a remedial investigation/feasibility study (RI/FS), the absence of which courts have found defeats a claim of compliance with the NCP. Moreover, plaintiff's investigation involved no written plan or any discernable unwritten plan, and was extremely limited in scope. No effort was made to evaluate the risk to public health or the environment posed by conditions at the site. Plaintiff's site investigation of the area of volatile organic compounds contamination was similarly deficient.

Plaintiffs also failed to meet the NCP's other requirements of assessing factors to determine whether and what type of remedial and/or removal actions will be considered, and the development of alternatives. The record shows that plaintiff did not document any evaluation of such factors as whether substances present at the site are "mobile," the actual or expected migration of contaminants, hydrogeological analyses of soil permeability, hydrologic gradients, proximity to a drinking water aquifer, and the extent that natural barriers might have contained the sludges. Plaintiff also failed to document any consideration of alternatives, and its cursory examination and rejection of alternatives does not demonstrate the reasoned development of alternatives called for under the NCP. The court also finds that although the cost to implement the remedies and the effect of each remedy on public health are two of the more significant elements of the evaluation and remedy selection process, plaintiff performed no documented or detailed cost analysis. Finally, the court finds that plaintiff's failure to provide an opportunity for appropriate public comment concerning the selection of a remedial action is fatal to plaintiff's recovery of response costs. While several courts have held that failure to provide an opportunity for public comment renders a remedial action inconsistent with the NCP and bars recovery of costs, some courts have held that input by state agencies serves as a substitute for public comment. However, the court notes that in those latter cases, substantially equivalent opportunities for public involvement existed, unlike in plaintiff's situation. Public knowledge and involvement in the selection of a remedial response is one of the most significant elements of the remedial process, and becomes acutely so in cases such as plaintiff's, involving a dispute between private parties.

The court next holds that even if plaintiff's cleanup was a removal action, it did not comply with the NCP. The NCP requires a private party to consider seven factors illustrative of circumstances that pose a serious and urgent threat of harm in determining the appropriateness of a removal action. Plaintiff failed to consult the regulations and did not conduct a review approximating the procedures set forth in the regulations. Plaintiff further failed to comply with the regulations by not notifying defendants that removal was necessary. The regulations provide that where the responsible parties are known, those parties should be asked to perform the necessary removal actions.

The court next holds that the involvement of state officials in the Oxford cleanup is inadequate to establish NCP consistency. No language in CERCLA supports the proposition that approval of the cleanup by state regulatory officials is itself indicative of NCP consistency. The state was not involved in the selection of cleanup alternatives, no intensive state private-party negotiations occurred, no consent decree mandating NCP compliance was issued, and no extensive compliance with the NCP occurred that the state approved before and after the response actions.

Finally, the court holds that granting partial summary judgment for defendants will not defeat CERCLA's goals and is appropriate at this time. The broad goals of cost-effective and environmentally sound cleanups must be viewed in light of the condition precedent that Congress imposed, namely that response actions shall be in accordance with the NCP and recovery allowed only for those costs incurred consistent with the NCP. Denying recovery against defendants under this narrowly drawn federal remedy does not preclude recovery for damages in tort. Moreover, the court notes that although granting partial summary judgment for defendants may deter parties from voluntarily cleaning up contaminated sites in the future, private parties must comply with the NCP to avoid the environmental consequences of digging up and moving hazardous wastes. Since plaintiff seeks recovery under CERCLA, plaintiff is required to comply with the specific requirements of that statutory claim. The court rejects plaintiff's request to delay ruling on defendants' motion for partial summary until EPA's ongoing RI/FS is available, because plaintiff's failure to take steps required by the NCP is dispositive of compliance and those omissions cannot be undone regardless of whatever information may result from the completed RI/FS.

Counsel for Plaintiff
Richard W. Ellis
Smith, Helms, Mulliss & Moore
316 W. Edenton St., P.O. Box 27525, Raleigh NC 27611-7525
(919) 828-8207

Counsel for Defendants
Cecil W. Harrison Jr.
Poyner & Spruill
3600 Glenwood Ave., P.O. Box 10096, Raleigh NC 27605-0096
(919) 783-6400