Full opinion text
OPINION MURRAY M. SCHWARTZ, Chief Judge. Plaintiff Artesian Water Company (“Artesian”) seeks to recover costs that it claims have been or will be incurred as a result of a release or threatened release of hazardous substances from a landfill owned by defendant New Castle County (“the County”). Artesian asserts these costs are “response costs” as that term is defined by the Comprehensive Environmental Response, Compensation, and Liability Act of " 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq. On February 14, 1985, Judge Stapleton granted the County’s motion to dismiss Artesian’s CERCLA claim. Artesian Water Co. v. New Castle County, 605 F.Supp. 1348 (D.Del.1985) (“Artesian I”). In that decision, the Court rejected the County’s assertion of sovereign immunity, id. at 1353-55, and found that CERCLA grants a private right of action. Id. at 1355-56. In granting the County’s motion to dismiss, however, the Court held that regulations promulgated by the United States Environmental Protection Agency (“EPA”) required prior governmental approval of certain response actions as a prerequisite to the recovery by a private party of the costs of such actions. Id. at 1357-62. The dismissal was without prejudice to the filing of a new complaint if Artesian were to obtain governmental approval of some or all of its proposed responses. Shortly after the decision in Artesian I, plaintiff moved for reargument in light of the publication of proposed amendments to the EPA regulations implementing CERCLA, collectively known as the National Contingency Plan (“NCP”). See 50 Fed.Reg. 5862 et seq. (Feb. 12, 1985). Consequently, the Court ordered a stay of further proceedings pending adoption by the EPA of a final version of the proposed amendments, which was ultimately published on November 20, 1985. See 50 Fed.Reg. 47911 et seq. (Nov. 20, 1985). The final revisions to the NCP make it clear that no prior governmental approval is required for the private recovery of response costs. Id. at 47934. Thus, that part of the decision in Artesian I dealing with the need for governmental approval is no longer controlling in this case. Currently before the Court is the County’s motion to dismiss Artesian’s amended complaint or, in the alternative, for summary judgment, and Artesian’s motion for partial summary judgment on liability. The Magistrate has written a thoughtful and well-reasoned recommendation that the County’s motion be denied in part and that Artesian’s motion be denied, and has done much to illuminate the issues before the Court. Although I agree with the majority of the Magistrate’s conclusions, I disagree with his resolution of some of the novel and difficult questions of law raised by this case. Consequently, I will deny the County’s motion and grant Artesian’s motion only with respect to Artesian’s claim for recovery of its monitoring and evaluation expenses. In all other respects, the County’s motion will be granted and Artesian’s motion will be denied. I. FACTS Artesian is a water utility that provides drinking water to approximately 130,000 residents of New Castle County, Delaware. The sources of supply for Artesian’s public water system are a series of wells situated throughout its service territory of roughly 106 square miles. Since 1946, one of Artesian’s primary sources of supply has been its Llangollen Wellfield, located approximately seven miles south of Wilmington, Delaware. The Llangollen Wellfield draws water from the Upper Potomac Aquifer, one of the most productive groundwater zones in New Castle County. By 1969, Artesian had seven wells on line in the Llangollen Wellfield with a production capacity of 4.9 million gallons per day (“MGD”). Following the construction of five replacement wells in 1971, Artesian was able to raise its average daily pumpage from the Llangollen Wellfield to 3.85 MGD and its peak withdrawals to 5.35 MGD. In 1972, the Delaware Department of Natural Resources and Environmental Control (“DNREC”) informed Artesian that groundwater pollution had been discovered in the vicinity of the Llangollen Wellfield. DNREC established an aquifer monitoring program and found the most likely source of the groundwater pollution to be the Army Creek Landfill (“the Site”), a landfill located about 3000 feet north-northwest of the Llangollen Wellfield. Thereafter, in 1973, DNREC directed Artesian to limit its withdrawals from the Llangollen Wellfield to 2.0 MGD, a restriction that has continued to the present. The Site comprises roughly 56 acres and was previously used as a sand and gravel pit. From about 1960 until 1968, the Site was used as a solid waste disposal facility. The County has held title to the Site only since 1974, although it had retained various third parties to manage disposal activities at the Site since I960. According to the EPA’s September 30, 1986 Record of Decision selecting a remedial alternative for the Site, an estimated 1.9 million cubic yards of refuse was disposed of at the Site, of which 30 percent or 600,000 cubic yards was placed beneath the seasonal water table. A report prepared for the County in 1972 found that leachate from the Site had entered the Upper Potomac Aquifer. By early 1974, the County had begun to use a groundwater recovery system to prevent further migration and infiltration of leach-ate into the groundwater beneath the Site. The groundwater recovery system is made up of a network of wells adjacent to the Site that withdraw contaminated water from around and under the Site in order to prevent its movement away from the Site. As a result of the recovery well system, a groundwater divide now exists between the Site and the Llangollen Wellfield. Under the remedial alternative selected by the EPA in its recent Record of Decision for the Site, the recovery well system would continue to operate. In addition, the landfill would be capped to minimize the infiltration of rainwater. A major complicating factor in the instant case is the presence of the Delaware Sand & Gravel Landfill (“DS & G Landfill”), an inactive, ten-acre waste disposal facility located several hundred feet east of the Site. The DS & G Landfill was also used previously as a sand and gravel pit. Studies have indicated that numerous hazardous substances in the DS & G Landfill pose a threat to the underlying Upper Potomac Aquifer. Both the Site and the DS & G Landfill are listed on the EPA’s National Priorities List (“NPL”) as sites posing a substantial risk or danger to the public health and welfare due to the release or threatened release of hazardous substances. See 40 C.F.R. part 300, app. B (1986). Out of the 703 sites listed on the NPL, the Site is ranked as the ninth most hazardous in the United States; the DS & G Landfill has a ranking of 227. Artesian brought this lawsuit pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), seeking a monetary recovery from the County of over $10 million. In addition to its private action, Artesian has presented a claim for payment out of the Hazardous Substance Response Fund (commonly known as the “Superfund”) pursuant to sections 111 and 112 of CERCLA, 42 U.S.C. §§ 9611-9612. In both proceedings, Artesian’s claim is made up of the following elements: (1) $60,000 for monitoring and evaluating the impact on the Llangollen Wellfield of the release of hazardous substances from the Site; (2) $600,000 as compensation for the loss of capacity of Artesian’s wells since pumping restrictions were imposed in 1973; (3) $1.0 million representing the differential cost of obtaining temporary alternative water supplies; and (4) $9.0 million representing the cost of obtaining permanent alternative water supplies, including construction of an interconnection with the Chester Water Authority. In short, Artesian seeks recovery for all of the costs it has incurred and expects to incur as a result of the pumping restrictions imposed after the detection of contaminants in the Upper Potomac Aquifer. II. ELEMENTS OF A CERCLA § 107 CLAIM CERCLA was enacted in 1980 during .the final months of the 96th Congress as a legislative response to the growing problem of toxic wastes, many of which were disposed of before their dangers were widely known and had contaminated precious land and water resources. The statute attempts to create a coherent answer to two related problems: the emergency abatement of releases of hazardous substances into the environment and the response, both short- and long-term, to the presence of hazardous wastes in existing disposal sites. Many of these sites had been abandoned by any party who could be held accountable for the cleanup. Wherever possible, however, CERCLA places the ultimate financial burden of toxic waste cleanup on those responsible for creating the harmful conditions. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, 805 F.2d 1074, 1081 (1st Cir.1986); Lone Pine Steering Comm. v. EPA, 777 F.2d 882, 886 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Because CERCLA as finally enacted was the product of an unusually arduous process of political compromise, it is hardly a model of concise legislative draftmanship. In general terms, the statute establishes the Superfund, which is financed primarily through excise tax revenues. The federal government is authorized to use the Superfund to finance governmental response activities, to pay claims arising from the response activities of private parties, and to compensate federal or state governmental entities for damage caused to natural resources. CERCLA § 111(a), 42 U.S.C. § 9611(a). In addition to the Superfund claim structure, CERCLA provides that the federal government, state governments, and private parties may sue those responsible for the generation, transportation, or disposal of hazardous substances. Id. § 107(a), 42 U.S.C. § 9607(a). Courts have uniformly imposed strict liability in construing the terms of section 107(a). See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985); United States v. Maryland Bank & Trust Co., 632 F.Supp. 573, 576 (D.Md.1986); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 843-44 (W.D.Mo.1984); United States v. Price, 577 F.Supp. 1103, 1113-14 (D.N.J.1983); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1148 (E.D.Pa.1982). Liability is, however, subject to the defense that the release of a hazardous substance was caused solely by an act of God, an act of war, or an act or omission of a third party unrelated to the defendant. CERCLA § 107(b), 42 U.S.C. § 9607(b). Responsible parties, or “covered persons,” are liable under section 107(a) for the response costs incurred by the plaintiff. CERCLA defines response costs as the costs of either “removal” actions or “remedial” actions. Id. § 101(25), 42 U.S.C. § 9601(25). Generally, removal actions are those intended for the short-term abatement of toxic waste hazards, while remedial actions are those intended to restore long-term environmental quality. See CERCLA §§ 101(23)-(24), 42 U.S.C. §§ 9601(23)-(24); Shore Realty, 759 F.2d at 1040; Artesian I, 605 F.Supp. at 1359-61; see also 40 C.F.R. § 300.68(a) (1986) (“[Remedial actions are those responses to releases that are consistent with permanent remedy”). Removal or remedial actions taken by the federal government, state governments, and private parties are to be conducted within guidelines established by the EPA’s National Contingency Plan, promulgated pursuant to section 105 of CERCLA, 42 U.S.C. § 9605. In the instant case, Artesian’s prima facie claim for cost recovery under section 107(a)(4)(B) consists of the following elements: (1) The County must fall within one of the four categories of “covered persons.” CERCLA § 107(a), 42 U.S.C. § 9607(a). (2) There must have been a release or a threatened release of hazardous substances from the Site. Id. § 107(a)(4), 42 U.S.C. § 9607(a)(4); see id. §§ 101(14), (22), 42 U.S.C. §§ 9601(14), (22). (3) The release or threatened release must have caused Artesian to incur costs. Id. § 107(a)(4), 42 U.S.C. § 9607(a)(4). (4) Artesian’s costs must be necessary costs of response. Id. § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B); see id. §§ 101(23)-(25), 42 U.S.C. §§ 9601(23)-(25). (5) Artesian’s response actions must be consistent with the National Contingency Plan. Id. § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B). The parties dispute the existence of each of these elements. III. CROSS MOTIONS FOR SUMMARY JUDGMENT A. Standard of Review The County'has moved pursuant to Fed. R. Civ.P. 12(b)(6) to dismiss Artesian’s amended complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment. Because the parties have referred to matters outside of the pleadings, Rule 12(b) requires that the motion to dismiss be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. Artesian has moved pursuant to Rule 56(c) for partial summary judgment on liability. Rule 56(c) permits a court to render summary judgment if it is “show[nj that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Nevertheless, “when a motion is made and supported, the nonmoving party must produce specific facts showing that there is a genuine issue for trial, rather than resting upon the assertions of pleading.” Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986); see Celotex Corp. v. Catrett, — U.S.-, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Assertions in the form of legal conclusions are insufficient to create issues of material fact that would preclude summary judgment. Securities & Exchange Comm’n v. Bonastia, 614 F.2d 908, 914 (3d Cir.1980). The parties here have presented cross motions for summary judgment. To prevail on its motion, Artesian must show that there is no genuine issue of material fact as to the existence of each of the five elements of liability under section 107(a) of CERCLA and also as to the nonexistence of any defense under section 107(b). Conversely, the County must show for purposes of its motion that there is no genuine issue of material fact as to the nonexistence of at least one of the five elements of Artesian’s prima facie case or, alternatively, as to the existence of a defense. The Court will address seriatim the elements of Artesian’s prima facie case and the County’s possible defense. B. Covered Person Section 107(a) of CERCLA sets out four categories of covered persons who may be held liable for the release of a hazardous substance: (1) the owner and operator of ... a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who ... arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person ..., and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person____ 42 U.S.C. § 9607(a). Because the County concededly is neither a generator nor a transporter of hazardous substances, it cannot be held liable under subsections (3) and (4) of section 107(a). Subsections (1) and (2), however, apply to owners and operators of hazardous waste facilities. Subsection (1) applies to all current owners and operators regardless of whether they owned or operated the facility when hazardous substances were disposed of there; subsection (2) applies to former owners and operators, but only if they owned or operated the facility at the time of hazardous waste disposal. See New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985) ; United States v. Maryland Bank & Trust Co., 632 F.Supp. 573, 578 (D.Md. 1986) . The Site was used as a waste disposal facility from 1960 until 1968. The County notes, however, that even though it purchased the Site in 1962, title to the land was held by the State of Delaware throughout the period of disposal activity. Moreover, the County did not directly control the disposal of wastes at the Site but instead retained various third-party operators. The County consequently asserts that it neither owned nor operated the Site when hazardous substances allegedly were disposed of there, and cannot be held liable under section 107(a)(2). In 1974, after the Site was closed, title was transferred from the State to the County, where it has remained. See 9 Del.C. § 317. For purposes of liability under section 107(a)(1), the County is therefore the current owner of the Site. Artesian argues in addition that the County has always been the operator of the Site because it is vicariously responsible for the actions of the third parties it retained to manage day-to-day disposal activities at the Site. See Idaho v. The Bunker Hill Co., 635 F.Supp. 665, 671-72 (D.Idaho 1986); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 848-49 (W.D.Mo.1984). The Court does not need to reach the issue of whether the County is the current operator of the Site, however, in order to find that the County is a covered person within the meaning of section 107(a)(1). Although section 107(a)(1) speaks in terms of “the owner and operator of ... a facility,” a party need not be both an owner and an operator to be held liable under that provision. In Maryland Bank & Trust, 632 F.Supp. at 578, the court observed: It is unclear from its face whether subsection (1) holds liable both owners and operators or only parties who are both owners and operators. This ambiguity stems in large part from the placement of the definite article “the” before the term “owner” and its omission prior to the term “operator.” Proper usage dictates that the phrase “the owner and operator” include only those persons who are both owners and operators. But by no means does Congress always follow the rules of grammar when enacting the laws of this nation____ Misuse of the definite article is hardly surprising in a hastily conceived compromise statute such as CERCLA, since members of Congress might well have had no time to dot all the i’s or cross all the t’r>. Other courts, as well, have not hesitated to hold liable under section 107(a)(1) current owners who were not current operators and vice versa. See Shore Realty, 759 F.2d at 1044; United States v. Conservation Chemical Co., 619 F.Supp. 162, 186-87 (W.D.Mo.1985); Northeastern Pharmaceutical, 579 F.Supp. at 848 n. 29. The County is a covered person under section 107(a). C. Release or Threatened Release Artesian must demonstrate there has been a release or threatened release of hazardous substances from the Site. The fact that hazardous substances are present in the groundwater around the Site is not in dispute. The County insists, however, that the concurrent release of hazardous substances from the nearby DS & G Landfill casts doubt on whether the contaminants detected in the vicinity of the Site in fact flow from the Site. Artesian offers several studies and analyses demonstrating that hazardous substances are present in the groundwater and in sediment near the Site. In response, the County submits the affidavit of Walter M. Leis, a geologist familiar with the Site and the County’s efforts to remedy the groundwater pollution problem. See Docket Item (“Dkt.”) 24A, Ex. B. Leis, disagreeing with the clear inference arising from the various analyses, asserts that “it cannot be stated to any reasonable degree of probability” that the toxic wastes identified in water samples taken beyond the boundaries of the Site are located within or emanate from the Site. Id. at ¶ 5. The County argues that the Leis affidavit is particularly probative in view of the DS & G Landfill and because Artesian has offered no evidence suggesting that hazardous substances were actually disposed of at the Site. The Court finds nevertheless that Artesian has made a showing of a release or threatened release of hazardous substances from the Site sufficient to satisfy its burden on summary judgment. First, once Artesian produced facts in support of its summary judgment motion, the County could not rely on simple contrary assertions to preserve a genuine issue for trial. See Celotex Cory. v. Catrett, — U.S.-, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir.1985); Securities & Exchange Comm ’n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980). Mere expert opinion as to the weight of the moving party’s evidence, without an offer of independent facts by the nonmoving party, cannot under the facts of this case be permitted to defeat summary judgment. See Seal Tite Corp. v. Ehret, Inc., 589 F.Supp. 701, 705-06 (D.N.J.1984). For reasons that seem all too clear, the County did not take advantage of the opportunity to create a triable issue by offering independent evidence that no hazardous substances are present within the boundaries of the Site. Second, Artesian is itself under no burden to show that hazardous substances were disposed of at the Site. As a landfill, the Site falls within CERCLA’s definition of a “facility” regardless of whether hazardous substances were deposited there. CERCLA § 101(9)(A), 42 U.S.C. § 9601(9)(A). Artesian need only demonstrate, as I believe it has, that contaminants were released from the Site. Finally, and most importantly, the policies underlying section 107 conflict with the County’s demand that Artesian prove beyond dispute that the contaminants found near the Site actually flow from the Site. From a technological standpoint, Artesian’s ability to “fingerprint” the leachate in the groundwater as emanating from either the Site or the DS & G Landfill is exceedingly doubtful. To impose such a requirement might permit the owners and operators of both facilities to avoid financial responsibility for the cleanup, and would thus eviscerate section 107. Cf. United States v. Wade, 577 F.Supp. 1326, 1332-33 (E.D.Pa.1983) (section 107 plaintiff need not prove that wastes released from a site are those of a particular generator defendant). The Court finds that there is no genuine issue of material fact as to the existence of a release or threatened release of hazardous substances from the Site. D. Causation CERCLA’s strict liability scheme does not diminish the necessity of demonstrating a causal connection between a release or threatened release and the incurrence of costs by a section 107 plaintiff. See New York v. Shore Realty Corp., 759 F.2d 1032, 1044 & n. 17 (2d Cir.1985); Idaho v. The Bunker Hill Co., 635 F.Supp. 665, 674 (D.Idaho 1986). Artesian must therefore show that it incurred costs as a result of the release or threatened release of hazardous substances from the Site. The County challenges the existence of causation on two levels. First, the County argues that Artesian cannot make the required showing that “but for” the release or threatened release from the Site, it would not have incurred costs. Second, the County asserts that under state law, Artesian had no protectable interest in withdrawing more than 2.0 MGD from the Llangollen Wellfield. The Court believes these contentions to be without merit and accordingly finds that the release or threatened release of contaminants from the Site caused Artesian to incur costs. 1. Causation in Fact In 1973, DNREC directed Artesian to limit its withdrawals from the Llangollen Wellfield to 2.0 MGD, a restriction that remains in place. The pumping restriction was initially imposed in order to stem the threat of contamination from the Site and to permit the operation of the County’s recovery well system. The County argues, however, that several other factors have since superseded the release or threatened release of contaminants from the Site as reasons for the continued 2.0 MGD restriction. These factors include the migration of pollutants from the DS & G Landfill, the threat of saltwater intrusion from the Delaware River, and DNREC’s “top of the aquifer” water supply management policy. Because the DNREC restriction was imposed before the DS & G Landfill and saltwater intrusion factors were known, Artesian responds that at least some of its costs were incurred as a direct result of the release or threatened release from the Site. The County insists that regardless of when the restriction was imposed, Artesian incurred none of its claimed costs before the superseding factors were discovered. The Court does not need to address the issue of timing, however, to find that the release or threatened release from the Site was the cause in fact of Artesian’s costs. The “but for” rule of causation upon which the County relies is inadequate where, as here, two or more causes have concurred to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result. I hold that a broader rule must control: the defendant’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 41, at 267 (5th ed. 1984); see Restatement (Second) of Torts §§ 431, 433 (1965). Stated another way, [w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event. Prosser and Keeton, supra, § 41, at 268. In appropriate circumstances, this formulation must be applied to determine causation issues under CERCLA. Thus, if the release or threatened release of contaminants from the Site was a substantial factor in causing Artesian to incur costs, the County may not escape liability merely because other causes — the DS & G Landfill, saltwater intrusion, DNREC’s aquifer management policy — have contributed to the result. The evidence is uncontradicted that the threat of contamination from the Site was initially the sole factor and remains a substantial factor in the continued pumping restriction on the Llangollen Wellfield. I therefore find as a matter of law that the release or threatened release of hazardous substances from the Site was the cause in fact of Artesian’s costs. 2. Protectable Interest In Artesian Water Co. v. New Castle County, C.A. No. 5106, slip op. at 7-13 (Del.Ch. Aug. 4, 1983), Vice-Chancellor Hartnett addressed the County’s argument that under Delaware law, Artesian had no protectable interest in withdrawing more than 2.0 MGD from the Llangollen Well-field. Artesian had based its claim for damages and injunctive relief on a nuisance theory of liability, and the County moved for summary judgment. Vice-Chancellor Hartnett held that Artesian’s claim to a protectable interest in withdrawing more than 2.0 MGD depended on whether the County’s groundwater recovery program could be considered a reasonable competing use of the aquifer. Id. at 8-11. The Chancery Court began by noting that under Delaware law an individual’s right to the use of groundwater is limited to a reasonable use, which must be judged by its effect on the rights of others who reasonably use the same water. Id. at 8-9 (citing MacArtor v. Graylyn Crest III Swim Club, 41 Del.Ch. 26, 187 A.2d 417, 419 (1963)). Although the court held that “[pollution of the groundwater cannot be characterized as a reasonable competing use,” the County’s groundwater recovery program, designed to avoid the spread of contaminants, “may, in fact, be a reasonable competing use of the aquifer.” Id. at 10-11. If so, an accommodation of the County’s use and Artesian’s use would be necessary. Vice-Chancellor Hartnett then turned to Artesian’s claim that its use in excess of 2.0 MGD was reasonable as a matter of law. In 1969, DNREC promulgated water use regulations providing that: The conditions of these Regulations shall not be retroactive and any person making a reasonable beneficial use of the water resources or public subacqueous lands of the State who has not obtained approval for such use prior to the adoption of these Regulations shall have such use protected and regulated in the same manner as any new application. Id. at 12 (quoting DNREC Regulation I, § 2.05 (1969)). The court held that under the regulations, Artesian’s 1969 use of 2.35 MGD “was grandfathered (or accepted as approved without former formal application and approval by the Commission) if determined to be a reasonable beneficial use.” Id. Noting that the State had never determined that Artesian’s use of 2.35 MGD was reasonable, the court concluded: The granting of grandfather rights without a formal application being filed or a hearing held or a finding that the use was a reasonable use of the available water, necessarily limits grandfather rights to a reasonable use of the groundwater. The reasonable use may be, of necessity, restricted or even diminished should conditions, not foreseen in 1969, require a diminution of plaintiff’s reasonable use of the water, in order to accommodate the rights of others. Whether plaintiffs rights to an otherwise reasonable water use can be restricted due to the necessity of limiting the amount of water taken from the aquifer because of pollution caused by the County’s landfill depends on whether such a diminution would be reasonable under all the facts and circumstances. Not all the facts and circumstances are presently before the Court. A critical factual issue is whether the County knew or should have known that the operation of the landfill would likely result in water pollution. Facts concerning the County’s knowledge or expectations are critical because, as will be shown, the County may not be strictly liable for the pollution. The plaintiff, therefore, has a protectable right of reasonable use of the groundwater and the County is not entitled to summary judgment on this issue. The plaintiff, however, does not have an absolute right to use water in excess of 2.0 mgd. and it therefore is not entitled to summary judgment on this issue. Id. at 13. Vice-Chancellor Hartnett’s opinion, fairly characterized, left open the issue of whether the County’s groundwater recovery program was a reasonable competing use of the aquifer. This Court is therefore free to decide the issue. Rather than hold for all purposes that the County's use is or is not a reasonable competing use under Delaware law, however, the Court will make the determination only in the narrow context of causation in a CERCLA action. Because the County’s use of groundwater directly results from the release or threatened release of hazardous substances that is the subject of this lawsuit, I hold for purposes of this CERCLA action that the groundwater recovery program cannot be considered a reasonable competing use. Artesian therefore has a protectable interest in withdrawing more than 2.0 MGD from the Llangollen Well-field. E. Response Costs Artesian must show that the costs it has incurred or will incur are “necessary costs of response.” CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B); see id. §§ 101(23)-(25), 42 U.S.C. §§ 9601(23H25). The cases firmly establish that the incurrence of response costs is an essential element of a prima facie case under section 107(a). See, e.g., City of New York v. Exxon Corp., 633 F.Supp. 609, 617-18 (S.D.N.Y.1986); Levin Metals Corp. v. Parr-Richmond Terminal Co., 608 F.Supp. 1272, 1275 (N.D.Cal.1985); Bulk Distribution Centers v. Monsanto Co., 589 F.Supp. 1437, 1451-52 (S.D.Fla. 1984); Jones v. Inmont Corp., 584 F.Supp. 1425, 1429 (S.D.Ohio 1984); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1143 (E.D.Pa.1982). Artesian has incurred or will incur three kinds of costs that it claims are response costs cognizable under CERCLA; (1) costs of monitoring and evaluating the impact on the Llangollen Wellfield of the release of hazardous substances from the Site; (2) costs related to the loss of capacity of Artesian’s wells since pumping restrictions were imposed in 1973; and (3) costs of obtaining temporary and permanent alternative water supplies. For the reasons that follow, the Court finds that only the expenses of monitoring and evaluation are response costs within the meaning of CERCLA. The other costs are all economic losses for which the statute provides no private remedy. The County’s motion for summary judgment must therefore be granted with respect to all of Artesian’s claims except the claim for recovery of monitoring and evaluation expenses. 1. Response Costs and Economic Losses Congress in enacting CERCLA clearly manifested an intent not to provide compensation for economic losses or for personal injury resulting from the release of hazardous substances. As reported from committee, the leading Senate Superfund bill, S. 1480, provided a private cause of action for all damages for economic loss or loss due to personal injury or loss of natural resources resulting from such a discharge, release, or disposal, including— (A) any injury to, destruction of, or loss of any real or personal property, including relocation costs; (B) any loss of use of real or personal property; (C) any injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss; (D) any loss of use of any natural resources, without regard to the ownership or management of such resources; (E) any loss of income or profits or impairment of earning capacity resulting from personal injury or from injury to or destruction of real or personal property or natural resources, without regard to the ownership of such property or resources; (F) all out-of-pocket medical expenses, including rehabilitation costs or burial expenses, due to personal injury; and (G) any direct or indirect loss of tax, royalty, rental, or net profits share revenue by the Federal Government or any State or political subdivision thereof, for a period of not to exceed one year. S. 1480, 96th Cong., 2d Sess. §§ 4(a)(2)(A)-(G). The version of S. 1480 debated on the Senate floor, however, was a substitute bill that differed markedly from that reported out of committee. The substitute version of S. 1480 included a liability section that is identical to the provision Congress ultimately enacted. The Chairman of the Senate Environment and Public Works Committee noted that the substitute contained “many concessions from the original bill reported last summer” and that “[w]e have deleted the Federal cause of action for medical expenses or property or income loss.” 126 Cong.Rec. S14,964 (daily ed. Nov. 24, 1980) (statement of Sen. Randolph). As Judge Stapleton noted, this legislative history makes clear that “Congress, in enacting CERCLA, intended to provide a vehicle for cleaning up and preserving the environment from the evils of improperly disposed of hazardous substances rather than a new font of law on which private parties could base claims for personal and property injuries.” Artesian I, 605 F.Supp. at 1357 n. 10; see Exxon Corp. v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 1108, 89 L.Ed.2d 364 (1986) (“Superfund money [is not] available to compensate private parties for economic harms that result from discharges of hazardous substances”). Artesian’s claims for cost recovery must therefore be viewed in light of the fundamental, if elusive, distinction between response costs and economic losses. 2. Monitoring and Evaluation Expenses Artesian’s first item of claimed response costs is the $60,000 it expended to monitor and evaluate the impact on the Llangollen Wellfield of the release of hazardous substances from the Site. The County argues that this otherwise valid claim is premature unless further response actions have been taken. In Bulk Distribution Centers v. Monsanto Co., 589 F.Supp. 1437 (S.D.Fla.1984), on which the County relies, the court held; Congress enacted CERCLA to promote and supervise the clean up of hazardous releases, not just to sthdy them; the Act requires action before a claimant may seek its protection. Feasibility studies and clean-up proposals are important first steps in neutralizing a toxic spill, but until someone applies the studies and executes the plan, the pollution threat remains. For this reason, CERCLA requires a claimant to start cleaning up a release before it can recover its expenses. In this way, the Act provides an incentive to arrest a spill, for without identifiable progress, a claimant may not seek compensation for its response costs under section 9607(a)(4)(B). Id. at 1452. Some authority exists for this view. See, e.g., United States v. Price, 577 F.Supp. 1103, 1110 (D.N.J.1983); State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1315-16 (N.D.Ohio 1983). Although the rationale suggested by the court in Bulk Distribution Centers is attractive, the only appellate decision on the issue reached the opposite conclusion. In Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th Cir.1986), the court held that the distinction between investigatory costs and actual cleanup costs is “immaterial” because CERCLA expressly provides for recovery of the costs of monitoring, assessment, and evaluation. Id. at 892 (citing CERCLA § 101(23), 42 U.S.C. § 9601(23)). I believe that the reasoning in Wickland is more persuasive and therefore hold that the County is liable for Artesian’s monitoring and evaluation expenses even if Artesian has incurred no further response costs cognizable under CERCLA. 3. Loss of Well Capacity Artesian’s second item of claimed response costs is the $600,000 of losses resulting from the idling of property and equipment since pumping restrictions were imposed on Artesian’s wells in 1973. Because CERCLA provides no private cause of action for economic losses, this claim is beyond the scope of the statute. See Artesian I, 605 F.Supp. at 1357 n. 10. The County is therefore not liable for the costs associated with Artesian’s loss of well capacity. 4. Provision of Alternative Water Supplies Artesian’s last (and by far its largest) item of claimed response costs is the approximately $10 million cost of obtaining temporary and permanent alternative water supplies (“AWS”) for its customers. At first glance, this claim may simply appear to be for economic losses rather than for response costs, and hence beyond the reach of CERCLA. The statute, however, expressly defines both removal action and remedial action as including “provision of alternative water supplies.” CERCLA §§ 101(23M24), 42 U.S.C. §§ 9601(23)-(24). The County concedes this point, but argues that the provision of AWS is not an appropriate response action under the circumstances here presented. I agree, and for the reasons that follow hold that the costs of providing AWS are recoverable under CERCLA only where the existing water supply is contaminated or is threatened with contamination. Because hazardous substances from the Site have not contaminated and no longer threaten to contaminate the Llangollen Wellfield, Artesian may not recover the costs of replacing its former source of water supplies. a. Provision of AWS and Natural Resource Damages The County argues Artesian’s claim for provision of AWS is more properly characterized as a claim for natural resource damages. Section 107 of CERCLA creates liability for “damages for injury to, destruction of, or loss of natural resources.” CERCLA § 107(a)(4)(C), 42 U.S.C. § 9607(a)(4)(C). “Natural resources” are defined to include “water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States ... any State or local government, or any foreign government.” Id. § 101(16), 42 U.S.C. § 9601(16). The Upper Potomac Aquifer is a natural resource within the meaning of CERCLA. Under the statute, however, actions for injury, destruction, or loss of a natural resource may be brought only by the federal government or a state. Id. § 107(f), 42 U.S.C. § 9607(f); see generally Idaho v. The Bunker Hill Co., 635 F.Supp. 665, 674-75 (D.Idaho 1986). As a consequence, the County asserts that an action for natural resource damages by the State of Delaware is the sole available remedy in the case of injury to the aquifer. Nothing in CERCLA, however, indicates that governmental claims for natural resource damages under section 107(a)(4)(C) and private claims for provision of AWS under section 107(a)(4)(B) are mutually exclusive remedies. As one court has noted, “a great deal of overlap” between natural resource damages and the costs of remedial action can be expected. United States v. Shell Oil Co., 605 F.Supp. 1064, 1084 n. 10 (D.Colo.1985). Indeed, the amount of recovery may be the same in both cases. The Court therefore concludes that the existence of a claim for natural resource damages does not by itself preclude Artesian’s claim for provision of AWS. b. Contamination or Threatened Contamination of the Existing Water Supply Although a private party may maintain an action to recover the costs of providing AWS despite' the possibility of a parallel claim for natural resource damages, the policies underlying CERCLA indicate that provision of AWS is an appropriate response action only where the existing water supply is contaminated or threatened with contamination. The EPA’s interpretation of the statute and of the NCP regulations it has promulgated thereunder lends significant support to this view. The primary goal of CERCLA is facilitating the prompt cleanup of hazardous waste sites. See Exxon Corp. v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 1108, 89 L.Ed.2d 364 (1986); New York v. Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir. 1985); Artesian I, 605 F.Supp. at 1356 (citing City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1142-43 (E.D.Pa. 1982)). It is no surprise, therefore, that CERCLA’s definitions of removal action and remedial action generally list responses that involve cleanup or treatment of the hazardous waste site itself. See CERCLA §§ 101(23)-(24), 42 U.S.C. §§ 9601(23)-(24). Section 101(23), however, defines removal actions to include “in addition” various responses designed instead to minimize public exposure to hazardous substances: security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title [federal investigations and monitoring], and any emergency assistance which may be provided under the Disaster Relief Act of 1974. 42 U.S.C. § 9601(23). Similarly, section 101(24) defines remedial actions to include some responses not strictly related to cleanup or treatment of the hazardous waste site, such as “provision of alternative water supplies” and “permanent relocation of residents and businesses and community facilities.” 42 U.S.C. § 9601(24). The implication of the statutory language is that CERCLA contemplates provision of AWS only where necessary to minimize public exposure to hazardous substances; that is, in cases of actual or threatened contamination of existing water supplies. Other sources of Congress’ intent support this conclusion. First, congressional supporters of a Superfund statute, in stressing the need for federal legislation, made numerous references in debates to the contamination of existing drinking water supplies with toxic wastes. Second, the recent amendments to CERCLA for the first time give content to the term “alternative water supplies” by defining it as “drinking water and household water supplies.” Superfund Amendments and Authorization Act of 1986, Pub.L. No. 99-499, § 101(f), 100 Stat. 1613, 1616 (to be codified at 42 U.S.C. § 9601(34)). According to the Senate committee report on the legislation, [t]his section makes it clear that household water must be replaced when this authority is invoked. The prompt provision of household water supplies should minimize the unfortunate situations in which citizens are bathing, washing clothes, and carrying out household chores with water contaminated by a release under this Act. S.Rep. No. 11, 99th Cong., 1st Sess. 7 (1985). The focus of Congress’ concern therefore was and remains public exposure to hazardous substances in tap water, not the replacement of water supplies unthreatened with contamination. Finally, the NCP regulations promulgated by EPA state as a general rule that provision of AWS is an appropriate removal action “where it will reduce the likelihood of exposure of humans or animals to contaminated water.” 40 C.F.R. § 300.65(c)(8) (1986); see also id. § 300.68(j)(4) (actions listed in § 300.65(c) are appropriate remedial actions if “[i]n response to the threat of direct contact with hazardous substances”). The record before the Court admits of no dispute, and Artesian conceded at oral argument, that Artesian’s water supply — the Llangollen Wellfield — is now free of actual or threatened contamination from the Site. For example, the EPA’s recent Record of Decision for the Site notes that “[d]ue to the success of the groundwater recovery system operated by the County, along with the reduction in pumpage by Artesian Water Company, the contaminants emanating from Army Creek Landfill are not currently threatening drinking water supplies.” Dkt. 185, Ex. B, at 8; see Affidavit of Michael A. Apgar, Dkt. 169, Ex. A, at ¶ 23 (“the induced movement of contaminants towards the Llangollen Well Field has been contained” by the creation of a groundwater divide). Of course, Artesian might eventually pump groundwater that is contaminated if permitted to withdraw water from the Llangollen Wellfield in excess of 2.0 MGD. The capacity to reach contaminated groundwater, however, does not justify provision of AWS in the absence of a threat to Artesian’s current water supply. Artesian’s provision of AWS is therefore not an appropriate response action under CERCLA, and the costs it has incurred or will incur are not “necessary costs of response” under section 107(a)(4)(B). This conclusion accords with the EPA’s interpretation of the relevant CERCLA and NCP provisions, undertaken as part of the selection of its own remedial alternative for the Site. The groundwork for the EPA’s interpretation was laid in a June 13, 1986 memorandum from Gene A. Lucero, Director of the EPA Office of Waste Programs Enforcement, to Steve Wassersug, Regional Director of the Hazardous Waste Management Division. See Dkt. 185, Ex. A. In response to questions posed by the regional office during the preparation of the NCP-mandated Feasibility Study for the Site, Lucero advised that “provision of an alternate water supply is not warranted because the remedial action already in place, and which will remain in place, will protect the drinking water supply downgradient of the landfill.” Id. at 2. He concluded that provision of AWS “to replace an, as yet, uncontaminated source of drinking water” would be unjustified. Id. at 3. The EPA adopted Lucero’s position in its September 30, 1986 Record of Decision, issued one month after the Magistrate filed his recommendation. The Record of Decision followed completion of the Feasibility Study and a public review and comment period. See Dkt. 185, Ex. B. The community relations responsiveness summary appended to the Record of Decision states that the position of the EPA is that replacement of aquifer capacity is not a goal for this CERCLA cleanup. The wellfield currently in use is being protected by the existing recovery well system, and other remedial measures recommended for this Site should prevent future contamination of the aquifer related to contamination from the landfill. Id., responsiveness summary at 6. The EPA thus declined to include provision of AWS among the federal government’s chosen response actions at the Site. Faced with the ambiguity arising from CERCLA’s exclusion of a cause of action for economic losses, on one hand, and its express reference to provision of AWS, on the other, the Court must consider the EPA’s interpretation of the statute. “An agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); see EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 83, 101 S.Ct. 295, 306, 66 L.Ed.2d 268 (1980); Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The EPA has consistently interpreted CERCLA to limit provision of AWS to cases of actual or threatened contamination of existing water supplies. See 40 C.F.R. § 300.65(c)(8) (1986). Because the Court finds this view to be both reasonable and consonant with the intent of Congress, it is obliged to defer to the EPA’s interpretation. See Vineland Chemical Co. v. EPA, 810 F.2d 402 at 409-410 (3d Cir.1987). In light of the foregoing considerations, I conclude that the County is not liable for the costs of replacing Artesian’s former source of water supplies. F. Consistency With the National Contingency Plan CERCLA requires Artesian’s response actions to be consistent with the NCP. CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B). Artesian vigorously argues, however, that consistency with the NCP is not properly an element of its prima facie case under section 107, and that it need not establish such consistency to be entitled to partial summary judgment on liability. Therefore, the argument goes, consistency with the NCP is relevant only in determining the amount of costs Artesian may recover. In the alternative, Artesian contends the consistency issue should be decided in light of the NCP in effect at the time its response actions were initiated, rather than in light of the current version. For the reasons that follow, I hold consistency with the NCP is an element of Artesian’s prima facie case under section 107 and that Artesian’s response actions should be evaluated under the current NCP. I further find that Artesian’s monitoring and evaluation expenses were incurred consistent with the NCP, but that Artesian’s other response actions are as a matter of law inconsistent with the NCP’s procedural and substantive requirements. The County’s motion for summary judgment must therefore be granted with respect to all of Artesian’s claims except the claim for recovery of monitoring and evaluation expenses. 1. Consistency With the NCP and Summary Judgment The NCP plays a central role in the CERCLA scheme. Section 105 requires the promulgation of a revised NCP that includes, at a minimum, (2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases ... (3) methods and criteria for determining the appropriate extent of removal, remedy, and other measures ... (7) means of assuring that remedial measures are cost-effective over the period of potential exposure____ CERCLA § 105, 42 U.S.C. § 9605. The statute requires that “the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan.” Id. Congress plainly contemplated that the NCP would be a standard against which response actions would be judged appropriate or inappropriate in the first instance, not merely a limit on the amount of damages recoverable from liable parties. I therefore hold that consistency with the NCP is an element of Artesian’s prima facie case under CERCLA. Two other considerations dictate this conclusion. First, Artesian’s motion for partial summary judgment on liability is dependent on the existence of some recoverable damages; that is, some response costs incurred consistent with the NCP. Under Fed.R.Civ.P. 56(c), if a genuine issue exists as to whether the plaintiff has suffered any damages, summary judgment is improper. See Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); 6 J. Moore, Moore’s Federal Practice 1156.18. The Court must address consistency with the NCP at this juncture in order to determine whether Artesian is entitled to recover any of its response costs, and to avoid the risk of a pointless trial at some later date. Second, the holding that consistency with the NCP is an element of Artesian’s prima facie case was implicit in Artesian I. In that decision, Judge Stapleton granted the County’s motion to dismiss, finding that the NCP required prior governmental approval of certain response actions. Artesian I, 605 F.Supp. at 1357-62. This litigation has proceeded on the assumption that consistency with the NCP is a prerequisite to a finding of liability under CERCLA. Artesian cites a number of cases in support of its contrary position. See, e.g., United States v. Medley, C.A. No. 7-86-252-3, slip op. at 7 (D.S.C. Nov. 4, 1986); New York v. Shore Realty Corp., 648 F.Supp. 255, 263-65 (E.D.N.Y.1986); United States v. Southeastern Pennsylvania Transp. Auth. (SEPTA), 24 Env’t Rep. Cas. (BNA) 1860, 1864 (E.D.Pa. July 1, 1986); United States v. Conservation Chemical Co., 619 F.Supp. 162, 175 (W.D. Mo.1985); United States v. Ward, 618 F.Supp. 884, 898-99 (E.D.N.C.1985); United States v. Mirabile, 15 Envtl.L.Rep. (Envtl.L.Inst.) 20,992 (E.D.Pa. Sept. 4, 1985); Pinole Point Properties v. Bethlehem Steel Corp., 596 F.Supp. 283, 290 (N.D.Cal.1984); Jones v. Inmont Corp., 584 F.Supp. 1425, 1430 (S.D.Ohio 1984); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1144 & n. 16 (E.D. Pa.1982). Most of these cases, however, simply stand for the proposition that consistency with the NCP cannot be resolved on the complaint alone and must instead await development of a factual record. See Shore Realty, 648 F.Supp. at 263 n. 5 (“the question of consistency may be resolved only at trial or after a factual record has been developed”); SEPTA, 24 Env’t Rep. Cas. (BNA) at 1864 (“whether plaintiffs have complied with this [consistency] requirement is not relevant in a motion to dismiss”); Pinole Point, 596 F.Supp. at 290 (“This factual determination cannot be made on the basis of the pleadings but must await development of a factual record.”); Jones, 584 F.Supp. at 1430 (“In light of the present procedural posture of the case ... we cannot say as a matter of law that the plaintiffs are not ... entitled [to recover response costs].”); Stepan Chemical, 544 F.Supp. at 1144 (“[T]his is not an issue that can be resolved on the pleadings. Rather, its disposition must await the development of a record.”). In the cases dealing with summary judgment rather than with a motion to dismiss, the moving party either did not raise or did no more than merely deny the element of consistency. See Medley, slip op. at 7; Conservation Chemical, 619 F.Supp. at 175; Ward, 618 F.Supp. at 901; Mirabile, 15 Envtl.L.Rep. (Envtl.L.Inst.) at 20,993. In contrast to the cases cited by Artesian, the parties here have compiled a sufficient factual record on the issue of consistency. The County has, moreover, detailed its allegations of inconsistency between Artesian’s response actions and the NCP. The question is therefore ripe for adjudication on the parties’ cross motions for summary judgment. 2. Applicability of the Current NCP Artesian argues that consistency with the NCP should be determined in light of the NCP in effect at the time its response actions were initiated, rather than in light of the current version. The revised NCP, promulgated pursuant to section 105 of CERCLA, was first published on July 16, 1982. See 47 Fed.Reg. 31180 et seq. (July 16, 1982); 40 C.F.R. §§ 300.1 et seq. (1985). Prior to publication of the 1982 NCP, the applicable plan was that promulgated pursuant to section 311(c) of the Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. § 1321(c). See 40 C.F.R. §§ 1510.1 et seq. (1982); see also CERCLA § 101(31), 42 U.S.C. § 9601(31) (defining national contingency plan). The 1982 NCP was revised on November 20, 1985. See 50 Fed.Reg. 47911 et seq. (Nov. 20, 1985); 40 C.F.R. §§ 300.1 et seq. (1986). Because most of Artesian’s response actions apparently were initiated while the 1982 NCP or the FWPCA plan was in effect, Artesian contends that the 1985 NCP should not apply to its response actions. Early decisions under CERCLA held that response costs incurred prior to publication of the 1982 NCP could be consistent with the NCP, even though the 1982 NCP had not yet been adopted when the claims for cost recovery were adjudicated. See United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1114-16 (D.Minn.1982); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1144 & n. 15 (E.D. Pa.1982). Cases decided after publication of the 1982 NCP built on the earlier rulings. In United States v. Wade, 20 Env’t Rep.Cas. (BNA) 1849 (E.D.Pa. March 23, 1984), the court stated: The generator defendants quite properly argue that one purpose in requiring that cleanup measures for which recovery is sought be consistent with the national contingency plan was to ensure evenhanded, responsible, and cost-efficient enforcement of CERCLA. Where they err is in concluding that to permit recovery for costs incurred prior to publication of the plan, but which are in fact consistent with the plan as subsequently published, would somehow undermine this policy. The only danger I foresee in permitting cleanup measures to go forward in the absence of a revised national contingency plan is one incurred by plaintiffs. The government will obviously encounter greater difficulty in assessing whether its costs will be recoverable before, as opposed to after, publication of the plan. Provided the national contingency plan is ultimately revised, as it was, and provided costs incurred either before or after publication are not inconsistent with the plan, which remains to be seen in this case, the Congressional concern with restraining agency action will be satisfied. Id. at 1852-53; see United States v. Shell Oil Co., 605 F.Supp. 1064, 1074-75 (D.Colo. 1985) . This reasoning appears to imply that those who incur response costs run the risk that these costs will be held inconsistent with the NCP in effect when their CERCLA claims are evaluated. Two recent decisions from the Ninth Circuit Court of Appeals, however, NL Industries v. Kaplan, 792 F.2d 896 (9th Cir. 1986), and Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887 (9th Cir.1986), found the 1982 NCP applicable to response costs incurred prior to publication of the 1985 NCP. The court noted its holding— that the NCP does not require prior governmental approval of response actions— would be the same regardless of which version of the NCP were applied. NL Industries, 792 F.2d at 898; Wickland, 792 F.2d at 891-92. Similarly, Artesian’s response costs may be evaluated in light of either the 1982 NCP or the 1985 NCP with the same result. In accordance with Wickland and NL Industries, I hold on the facts of this case that consistency with the NCP should be determined in light of the NCP in effect at the time the response costs are incurred, not when the response actions are initiated or when the claims for cost recovery are evaluated. Although Artesian asserts most of its response actions were initiated before the 1985 NCP took effect, the fact remains that the great bulk of Artesian’s costs — particularly the costs