Carson Harbor Village, Ltd. v. County of Los Angeles, et al.
(9th Cir. 2006) 06 C.D.O.S. 339

"Minor and Ministerial Involvement" by a Public Agency Does Not Satisfy the Public Participation Requirement of the National Contingency Plan (NCP), and Analysis of One Option Does Not Meet the Feasibility Requirement of the NCP pursuant to CERCLA

The Ninth Circuit Court of Appeals ("Ninth Circuit"), affirming summary judgment for defendant Unocal Corporation ("Unocal") granted by the Central District of California, held that plaintiff Carson Harbor Village, Ltd. ("Carson Harbor") was denied recovery of cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.

Carson Harbor owned the Carson Harbor Village Mobile Home Park ("Property") in Carson, California since 1983. In the past, Unocal held an oil and gas lease on the Property from 1945 to 1977, when the Property was converted to a mobile home park.

Carson Harbor first discovered tar-like and slag material in the wetlands on the Property in 1994. Carson Harbor hired McLaren-Hart, a national environmental engineering and consulting firm, to investigate the pollution at the Property. As required by law, Carson Harbor notified the Regional Water Quality Control Board ("RWQCB") of McLaren-Hart's finding of high lead concentrations at the Property. Unocal was first notified of pollution at the Property a year later on March 10, 1995. By October 11, 1995, McLaren-Hart and Unocal completed the remediation of the Property. On October 18, 1995, the RWQCB issued a no further action ("NFA") letter signifying that the remediation had been completed.

On March 7, 1996, Carson Harbor filed suit against Unocal and other parties seeking damages under CERCLA, as well as various federal and state laws. District Judge Margaret M. Morrow granted summary judgment in favor of Unocal on the CERCLA claim, holding that Carson Harbor failed to show there were genuine issues of material fact regarding whether its remediation substantially complied with the National Contingency Plan ("NCP") public participation and feasibility study requirements. Carson Harbor V. Unocal, 287 F.Supp.2d 1118, 1172, 1204 (C.D. Cal. 2003). Carson Harbor appealed. Wherefore, the Ninth Circuit confronted the following issues: (1) whether Carson Harbor's remediation substantially complied with the NCP public participation requirement and (2) whether Carson Harbor's remediation substantially complied with the NCP feasibility study requirements. The Ninth Circuit held that Carson Harbor's remediation failed to substantially comply with the NCP public participation and feasibility requirements and affirmed Unocal's motion for summary judgment under CERCLA.

The public participation requirement has three main components. First, in developing a remedial action plan ("RAP"), prior to actual field work beginning, the party conducting the cleanup "shall . . . to the extent practicable" interview local officials, community residents, or other interested or affected parties to learn their concerns. 40 C.F.R. § 300.430(c)(2)(i). Second, a formal community relations plan must be prepared to ensure an opportunity for public involvement, and at least one local "information repository" must be established to make information available to the public about the site remediation. 40 C.F.R. § 300.430(c)(2)(ii). Third, after a RAP has been chosen, the party conducting the cleanup shall publish notice of the RAP in a local newspaper, provide an opportunity for submission of comments on the proposed RAP, provide an opportunity for a public meeting, make a transcript of the meeting available to the public, and prepare a written summary of significant comments and responses to those comments. 40 C.F.R. § 300.430(f)(3).

Carson Harbor failed to comply with the public participation requirement of the NCP. Carson Harbor argued that the RWQCB's "substantial involvement" in the RAP's implementation met the NCP's public participation requirement. However, the Ninth Circuit disagreed, characterizing the RWQCB's actions as "minor and ministerial involvement" and analogizing heavily to the Second Circuit Court of Appeals' opinion in Bedford Affiliates v. Sills, 156 F.3d 416, 428 (2d Cir. 1998). The RWQCB was involved in a very limited fashion. The RWQCB was not present when Carson Harbor did a preliminary investigation of the pollutants at the Property. Furthermore, the RWQCB was not actively involved in the RAP at the Property. The RWQCB simply did not take a lead role. The RWQCB merely approved McLaren-Hart's proposed RAP, with very minor modifications. Additionally, the RWQCB did not oversee the cleanup, but merely inspected the Property after cleanup was complete to verify that McLaren-Hart had complied with the RAP.

Likewise, the Ninth Circuit found that Carson Harbor had not demonstrated substantial compliance as to the feasibility study requirements of the NCP, relying firmly on its previous opinion in Washington State Dept. of Transp. v. Washington National Gas Co., 59 F.3d 793, 799 800 (9th Cir. 1995) (held that "summary analysis [which] states that the disposal of the tar at [the Property] is the only 'feasible option' and does not indicate that other alternatives were even considered" is insufficient for NCP compliance).

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