## Facts

- The case involved environmental cleanup at the Rawley Mine and Rawley Mill site (the Rawley site) in Saguache County, Colorado.
- ASARCO Incorporated (ASARCO) incurred response costs in investigating and addressing contamination at the Rawley site and sought to shift part of those costs to Raytheon Constructors, Inc. (Raytheon) under CERCLA and Colorado law.
- In the district court, Raytheon was held liable to ASARCO for 40 percent of the Rawley site cleanup costs as a CERCLA “operator” and “arranger” and as a joint tortfeasor under Colorado law.
- Raytheon argued that, even if it was otherwise liable to share cleanup costs, ASARCO could not recover most of its claimed costs because ASARCO failed to perform a remedial investigation/feasibility study (RI/FS) consistent with the National Contingency Plan (NCP).
- ASARCO did not prepare a document labeled “RI/FS.” Instead, ASARCO prepared an “initial work plan” that compiled surface-water sampling results and reviewed prior studies about the site.
- The initial work plan identified and screened a range of cleanup alternatives, but it evaluated the alternatives using only six of the nine NCP criteria.
- The work plan compared costs only in broad terms (e.g., describing alternatives as having “high” or “low” costs), and it devoted only a little more than a page to comparing and selecting alternatives.
- The work plan did not evaluate alternatives against applicable or relevant and appropriate requirements (ARARs).
- ASARCO maintained that its initial work plan was the functional equivalent of an RI/FS and therefore substantially complied with the NCP.

## Issues

1. Whether a party seeking to recover CERCLA response costs must show that its cleanup process substantially complied with the NCP, including the RI/FS requirement for a remedial action.
2. Whether ASARCO’s initial work plan qualified as the functional equivalent of an RI/FS when it did not evaluate all NCP criteria, gave only generalized cost comparisons, and did not analyze ARARs.
3. If ASARCO did not substantially comply with the NCP, whether (and to what extent) ASARCO’s claimed response costs were recoverable from Raytheon.

## Decision

- The Tenth Circuit held that recoverability of private response costs turns on substantial compliance with the NCP’s process requirements for selecting a remedy, not merely on whether cleanup work occurred.
- The court rejected ASARCO’s argument that its initial work plan was the functional equivalent of an RI/FS, given the limited alternatives analysis, the cursory cost comparison, and the absence of ARAR analysis.
- The court ruled that ASARCO’s failure to conduct an RI/FS (or a functional equivalent) meant ASARCO could not shift the challenged portion of its response costs to Raytheon.
- The court reversed the cost award to the extent it rested on noncompliance with the NCP and remanded for further proceedings consistent with its NCP ruling.

## Legal Principles

- A private party seeking to recover CERCLA response costs must prove the costs are consistent with the NCP; “consistency” is shown through substantial compliance with NCP requirements.
- For a remedial action, substantial compliance generally requires an RI/FS-level evaluation of cleanup alternatives, including a reasoned comparison and selection process tied to the NCP criteria.
- A document is not a functional RI/FS when it provides only abbreviated alternatives analysis, uses only generalized cost descriptions, or omits consideration of ARARs.
- When NCP noncompliance is shown, the noncomplying party may be barred from recovering the response costs tied to the deficient remedy-selection process.

## Conclusion

Raytheon Constructors, Inc. v. ASARCO, Inc. addresses recoverability of CERCLA response costs under the NCP: the Tenth Circuit held that ASARCO could not shift the disputed share of Rawley site cleanup costs because ASARCO did not conduct an RI/FS (or a functional equivalent) and therefore did not substantially comply with the NCP’s requirements for selecting a remedial action.


Raytheon Constructors, Inc. v. ASARCO, Inc., 368 F.3d 1214 (2003)