The NCP provides an organizational structure and procedures for preparing for and responding to the discharge of hazardous substances, pollutants and contaminants. A cleanup is consistent with the NCP if, taken as a whole, it is in “substantial compliance” with 40 C.F.R. § 300.700(c)(5)(6). However, an immaterial or insubstantial deviation will not result in a cleanup that is not consistent with the NCP. Numerous courts have pointed out that consistency with the NCP is a peculiarly fact intensive question that can normally only be determined at trial, or at least after a full pretrial record has been prepared.
Numerous courts have pointed out that consistency with the NCP is a peculiarly fact intensive question that can normally only be determined at trial, or at least after a full pretrial record has been prepared. For this reason, courts have typically bifurcated the issues of liability and damages, enabling a plaintiff to obtain summary judgment on the liability issue while reserving for trial the issue for which damages are recoverable—which includes questions of necessity and consistency with the NCP. However, the mere fact that a plaintiff, without proving NCP compliance, can prevail on its own motion for partial summary judgment does not mean that a defendant is precluded from obtaining summary judgment dismissing the entire claim when there is no genuine question of fact that NCP compliance is lacking.
As stated above, the NCP sets forth a variety of provisions that private parties should consider. One set calls for an opportunity for public comment concerning the selection of a response action, and identifies a set of potentially applicable NCP regulations. Failure to substantially comply with the public participation requirement is considered a material deviation from the NCP and is grounds for summary judgment. In Aviall Services, Inc. v. Cooper Industries, LLC, the court held that considering the NCP’s express purposes in order for a party to substantially comply with the public participation requirement: (1) there must be sufficient oversight—either by the public or by a government agency charged with protecting the public environmental interest—to protect the public’s shared interest in an “environmentally sound” cleanup; and (2) parties who might foreseeably be affected by the private party’s decisions must be given a meaningful opportunity to participate in them.
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