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Oil Re-Refining Co. v. Pacific Recycling, Inc.

ELR Citation: 42 ELR 20025
Nos. 11-6042, (D. Or., 01/17/2012) (Hogan, J.)

A district court dismissed a property owner's CERCLA claim for costs incurred responding to PCB contamination allegedly caused by an oil recycling company. The owner alleged that the company spilled PCBs on the site. But the $800,000 in costs purportedly incurred are not related to the alleged releases or to the remediation efforts allegedly undertaken, and the costs incurred are not the type recoverable under CERCLA. Recoverable remedial costs include storage, confinement, repair of leaking containers, and monitoring. The owner argued that, at this stage, it has only taken removal actions and not remedial actions and thus need not comply with the NCP requirements. But even removal actions require removal site evaluation and review of current site conditions. In addition, a party conducting removal actions must notify affected citizens and provide for public comment. The owner's response claim, therefore, was dismissed. The property owner, however, may amend its complaint to make a good faith claim of liability and any damages or an expectation of damages consistent with the NCP. But the property owner may not pursue a citizen suit under CERCLA because citizens suits are confined to injunctive relief. Here, the complaint only outlines monetary damages for cleanup, storage, damages to facilities, and business losses. It provides no notice of the pursuit of injunctive relief.