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ALCAN-TOYO AMERICA, INC. v. NORTHERN ILLINOIS GAS

November 7, 1995

ALCAN-TOYO AMERICA, INC., Plaintiff,
v.
NORTHERN ILLINOIS GAS COMPANY and COMMONWEALTH EDISON COMPANY, Defendants.



The opinion of the court was delivered by: BUCKLO

 Plaintiff, Alcan-Toyo America, Inc. ("Alcan-Toyo") seeks recovery of response costs from defendants, Northern Illinois Gas Company and Commonwealth Edison Company ("the Utilities") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. (1995). For the reasons stated below, Alcan-Toyo's request is granted in part and denied in part.

 Background

 Alcan-Toyo brought suit against the Utilities under Section 107(a) of CERCLA to recover past costs incurred in response to a threatened release of hazardous materials at a site Alcan-Toyo owns. In addition, Alcan-Toyo sought a declaration of the Utilities' liability for future costs incurred in response to threatened releases. All parties stipulated to liability under CERCLA.

 In a Memorandum Opinion and Order issued on March 24, 1995, this court held that the Utilities were responsible for ninety percent of future response costs, with Alcan-Toyo responsible for the remaining ten percent. *fn1" With this opinion I address the response costs incurred by Alcan-Toyo prior to this litigation. These include the costs of an investigation performed by the environmental consulting firm Dames & Moore and the investigation and subsequent excavation of contaminated soil performed by environmental consultants O'Brien & Gere ("OBG"). The Utilities admit that as a responsible party they are liable for the legally recoverable costs incurred by Alcan-Toyo, but dispute whether the costs at issue here are legally recoverable.

 The Appropriate Legal Standard

 Under § 107 of CERCLA, responsible parties are liable for "necessary costs of response incurred . . . consistent with the national contingency plan." 42 U.S.C. § 9607(a). Thus, in order to recover the costs for the work performed by Dames & Moore and OBG, Alcan-Toyo must establish that their work was (1) necessary and (2) consistent with the national contingency plan ("NCP") See, e.g., County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1512 (10th Cir. 1991) (holding that proof that costs were incurred consistent with the NCP is a prima facie element of plaintiff's case to recover response costs); G.J. Leasing Co. v. Union Elec. Co., 854 F. Supp. 539, 561 (S.D. Ill. 1994), aff'd., 54 F.3d 379 (7th Cir. 1995) (requiring plaintiff to "prove affirmatively that its response costs were both necessary and consistent with the NCP in order to recover under CERCLA").

 The National Contingency Plan, promulgated by the United States Environmental Protection Agency ("EPA"), was revised in 1985 (the "1985 NCP") and again in 1990 (the "1990 NCP"). The 1990 NCP became effective on April 9, 1990. See 55 Fed. Reg. 8666 (1990) (Preamble to 1990 NCP). The 1990 NCP reduced the burden on the party seeking recovery for its response costs by requiring only "substantial compliance" with the NCP in order for costs to be "consistent with the NCP." See 40 C.F.R. § 300.700(c)(3)(i) (1994). Thus "immaterial or insubstantial deviations from the [NCP]" will not render response costs "not consistent with the NCP." 40 C.F.R. § 300.700(c)(4). Previously, under the 1985 NCP, a party seeking to recover costs had to comply strictly with the relevant provisions of the NCP. See Gussin Enterprises, Inc. v. Rockola, 1993 U.S. Dist. LEXIS 4579, No. 89 C 4742, 1993 WL 114643 at *4 (N.D. Ill. April 13, 1993). Both versions of the NCP are potentially applicable to the costs at issue here because the work was begun in 1989 and completed after 1990.

 Dames & Moore's Work

 The work performed by Dames & Moore was begun in 1989 and completed in June of 1990. The bulk of the work performed by Dames & Moore was performed prior to April 9, 1990, the date on which the 1990 NCP took effect. According to OBG's summary of the work, Dames & Moore conducted five stages of sampling. Three of these were completed by January of 1990; the fourth and fifth phases were conducted between February and May of 1990. *fn2" The Dames & Moore invoices submitted by Alcan-Toyo do not specify the activities being billed, but over $ 70,000 of the almost $ 95,000 total bill was for periods prior to March 31, 1990. The 1985 NCP is accordingly applicable to the work performed by Dames & Moore. See G.J. Leasing Co., supra, 854 F. Supp. at 563 ("[A] response cost is recoverable under CERCLA only if it is consistent with the NCP in effect at the time the response costs were incurred.").

 Alcan-Toyo urges the court to apply the 1990 NCP retroactively, because the actual clean-up did not commence until after April of 1990. The policy considerations behind the 1990 NCP change to only substantial compliance, however, do not dictate a retroactive application. In moving to a lower standard, the EPA wanted to encourage more private parties to undertake voluntary cleanup activities. By requiring only substantial, rather than strict, compliance, the EPA hoped to make it easier for private parties to recover the costs of their efforts, and therefore more likely that they would clean up contaminated sites themselves. See 55 Fed. Reg. at 8794 ("EPA also believes that it is an important public policy to encourage private parties to voluntarily clean up sites, and to remove unnecessary obstacles to their recovery of costs."). Parties who had already begun cleanup attempts, however, had no need for the added encouragement provided by the 1990 NCP.

 Under the 1985 NCP, Alcan-Toyo must have "strictly" complied with the plan in order to obtain response cost recovery. Gussin Enterprises, supra, 1993 U.S. Dist. LEXIS 4579, 1993 WL at *4. In order to determine compliance with the NCP, I must characterize the work performed and ascertain which section of the NCP applies. The Utilities contend that because the NCP definition of removal includes site evaluation, Dames & Moore's evaluation should be judged according to the section governing removal. However, a preliminary assessment and site inspection is a separate phase of a response action under 40 C.F.R. § 300.64 (1986). Under this provision, Alcan-Toyo was to evaluate whether a removal was necessary, based on the potential threat to public health and the magnitude of that threat. The section lists several steps the party "may" follow in making that assessment, but has few procedural requirements. I find that Dames & Moore adequately assessed the nature of the problem and therefore strictly complied with the 1985 NCP.


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