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NL Indus. v. Kaplan

ELR Citation: 16 ELR 20749
Nos. No. 85-2783, 792 F.2d 896/24 ERC 1550/(9th Cir., 06/20/1986)

The court rules that a governmentally authorized cleanup program is not a prerequisite to a private cost recovery action under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and that consistency with the national contingency plan (NCP) does not require strict compliance with the plan's provisions. The court first rules that a private party need not obtain governmental approval prior to instituting a cost recovery action in order to be consistent with the NCP for the same reasons it articulated in Wickland Oil Terminals v. ASARCO, Inc., 16 ELR 20754. The court holds that plaintiff's allegation that he was required by state and local agencies to expend funds in detecting and disposing of hazardous wastes at the site in question is sufficient to support a claim that the incurrence of response costs was necessary within the meaning of CERCLA §107(a)(2)(B). The court holds that plaintiff's failure to promptly report the existence of a hazardous substance release, as required by the NCP, does not render plaintiff's incurrence of response costs inconsistent with the NCP, ruling that consistency with the NCP does not require strict compliance with the plan's provisions.

Counsel for Petitioner-Appellant
Jennifer L. Machlin
Orrick, Herrington & Sutcliffe
Transamerica Pyramid, 600 Montgomery St., San Francisco CA 94111
(415) 392-1122

Counsel for Respondent-Appellee
John D. Hoffman
Ellman, Burke & Cassidy
Ste. 200, One Ecker Bldg., Ecker & Stevenson Sts., San Francisco CA 94105
(415) 777-2727