The Ninth Circuit Court of Appeals, in Ameripride Services, Inc. v Texas Eastern Overseas Inc,, (2015 WL 1474947, April 2, 2015) recently addressed the relationship between consistency with the National Contingency Plan (NCP) and CERCLA contribution claims.   The issue was, given that a section 107 cost recovery plaintiff must prove that the costs were incurred in a manner that was consistent with the NCP, does the same requirement apply to a contribution plaintiff?  The court concluded that NCP compliance is also a requirement for a contribution claim.

The court reasoned that while section 113 (the contribution provision) makes no reference to the NCP, it does reference section 107, providing a contribution claim against “any other person who is liable or potentially liable” under section 107.  Because a section 113 contribution claim is tied to liability under section 107, the court concluded that one should not be able to collect under section 113, costs that could not be recovered under section 107.

This decision places a difficult burden on settling parties and may reduce the likelihood of settlement.  Plaintiff in the contribution action had settled groundwater contamination claims brought under section 107 by a public water supplier and brought suit to collect a portion of those costs.   Based on this ruling, the contribution claimant can only collect to the extent that the settlement paid for costs that would be section 107 response costs, meaning costs  incurred in a manner consistent with the NCP.  That means that if a section 107 defendant thinks the plaintiff will have a problem proving NCP consistency, but nevertheless settles the suit thinking it can bring a contribution claim against other PRPs, it may have a problem with its contribution claim because it may need to prove that remedial costs about which it questioned consistency with the NCP when it was a defendant, were in fact consistent with the NCP.  Because the contribution claimant did not incur those response costs and did not control how they were spent, it may have difficulty proving consistency with the NCP.