aff'd., 175 F.3d 1177 (10th Cir.1999); Channel Master Satellite, Systems, Inc. v. JFD Electronics Corp., 748 F.Supp. 373, 381 (E.D.N.C.1990) (“[I]n a cost recovery action such as this, the plaintiff bears the burden of proof to establish, as an essential element of discovery that, inter alia, the response costs for which it seeks compensation are ‘consistent’ with the NCP”). See generally City of Oakland v. Nestle USA, Inc., No. C-98-3963 SC, 2000 WL 1130066, * 3 (N.D.Cal. Aug.8, 2000) (“To establish a prima facie case under CERCLA §§ 107 and 113, a plaintiff must demonstrate that ... a ‘release’ ... caused the plaintiff to incur response costs that are ‘consistent with the national contingency plan’ ”). See also NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 791 (7th Cir.2000) (<HOLDING>); Sherwin-Williams Co. v. City of Hamtramck,
holding that district court should not have granted summary judgment solely on basis that motion for summary judgment was not opposed holding that district court should not have granted summary judgment solely on basis that a motion for summary judgment was not opposed holding that defendant must object at trial to preserve as applied challenge for appeal holding that defendant should have challenged plaintiffs ncp compliance at summary judgment to preserve the issue for appeal holding defendant failed to preserve burden of proof issue for appeal