Does a plaintiff need to comply with the NCP under the Texas SWDA?

In contrast to CERCLA, a plaintiff asserting a cost-recovery claim under the SWDA does not have to prove compliance with the NCP.  Instead, Section 361.344 only requires a plaintiff to prove that its response costs were “reasonable and necessary.” 

The Texas Legislature states the purpose of SWDA is “to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste, including accounting for hazardous waste that is generated.”   

Therefore, one Texas court has held that it is consistent with the stated purpose of SWDA to require a plaintiff to demonstrate that its remedial costs are “reasonable and necessary” by showing that the costs are (1) incurred in response to a threat to human health or the environment, and (2) necessary to address that threat.

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