ELR Citation: ELR 21299
No(s). s. 89-5118, -5119 (10th Cir. May 24, 1991)

The court holds that the owners of a contaminated landfill cannot recover their response costs from a former owner under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because the current owners failed to comply with the National Contingency Plan (NCP). The court first holds that the district court properly granted the former owner summary judgment as to the current owners' failure to establish a prima facie case for cost recovery under CERCLA. Proof of consistency with the NCP is not merely a measure of the damages recoverable under CERCLA §107, but is an element of a prima facie claim to recover private-party response costs. Because the current owners failed to show the requisite consistency with the NCP, the extent of harm that the current owners suffered in incurring investigation and closure costs is noncognizable under CERCLA. Unlike cases where the factual record does not permit a determination of consistency with the NCP at the time a motion for summary judgment is filed, this case involves a fully developed record on which to make the NCP consistency determination and nothing will be gained by delaying this determination until trial.

The court next holds that under either the 1985 NCP or the 1990 revised NCP, the costs incurred by the current owners in closing the landfill are not consistent with the NCP and thus not recoverable under CERCLA §107. Even though the 1990 revisions to the 1985 NCP changed the level of compliance from strict to substantial in order to prevail in a private cost recovery action, both the 1985 and 1990 NCPs required that meaningful public participation be provided. Since the current owners failed to provide for any public participation in selecting a response action, the current owners failed to comply with either NCP. The court also holds that the current owners may not argue for the first time on appeal that their preclosure investigatory costs were independently recoverable under CERCLA §107. Although case law supports the severability of investigation and cleanup costs, the current owners from the inception of this case have treated their claims as a single allegation of injury.

The court next holds that the district court properly held that consistency with the NCP is an element of a contribution claim under CERCLA §113(f). Although CERCLA §113(f)(3)(B) does not speak directly to the source of liability from which its contribution right arises, this provision should be seen as part of CERCLA's larger statutory scheme. Under that scheme, contribution is only available where joint liability can be imposed and the current owners' use of only CERCLA §107(a) as its basis for joint liability requires that the costs incurred must be consistent with the NCP. Since the current owners failed to incur their costs in compliance with the NCP, there is no common liability and no right to contribution under §113(f). Moreover, the contribution paragraphs of §113 should be read together to reflect the statutory scheme of promoting private action. Direct reference to a liability standard is found at §113(f)(1), which expressly links the contribution right to liability under §107. Although scant, the legislative history also supports the view that contribution under §113 arises in the context of CERCLA's joint and several liability scheme. There is no suggestion in CERCLA that Congress intended to create a general federal right of contribution for damages and response costs that are not otherwise cognizable under CERCLA.

Finally, the court holds that the district court properly granted the former owner's motion for summary judgment as to the current owners' unjust enrichment state law claim. Although the former owner is potentially liable to any person for CERCLA-cognizable costs incurred in response to a release or threatened release of hazardous substances, the current owners submitted no evidence to show that any other party incurred costs or damages potentially recoverable from the former owner under CERCLA, or that the Environmental Protection Agency, the state department of health, or any other person was contemplating a response action at the site before the current owners volunteered to close the landfill. Thus, the benefit the current owners claim to have conferred on the former owner is speculative and cannot serve as a basis for finding "enrichment" sufficient to justify recovery from the former owner under a theory of unjust enrichment.

[The district court's decision is published at 19 ELR 21312.]

Counsel for Appellants
Oliver S. Howard, Dennis C. Cameron
Gable & Gotwals
2000 Fourth National Bank Bldg., Tulsa OK 74119
(918) 582-9201

David A. Carpenter
4835 S. Peoria, Tulsa OK 74105
(918) 749-0050

Counsel for Appellee
Charles W. Shipley, Blake K. Champlin, Leslie C. Rinn
Shipley, Inofe & Strecker
3600 First National Tower, Tulsa OK 74103
(918) 582-1720

Before HOLLOWAY, Chief Judge, and MOORE and BRORBY, Circuit Judges.