Carson Harbor Village, Ltd. v. Unocal Corp.

AMENDED ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT OF UNOCAL CORPORATION, COUNTY OF LOS ANGE-LES, CITY OF COMPTON, AND CITY OF CARSON; DENYING MOTION FOR SUMMARY JUDGMENT OF CARSON HARBOR VILLAGE, LTD.; AND GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT OF CARSON HARBOR VILLAGE MOBILE HOME PARK, RICHARD BRALEY AND WALKER SMITH

MORROW, District Judge.

Plaintiff Carson Harbor Village, Ltd. (“Carson Harbor”) is the owner and opera

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tor of a mobile home park in Carson, California. An undeveloped, open-flow wetlands covers approximately seventeen acres of the mobile home park property. In 1993, while attempting to refinance the property, Carson Harbor discovered hazardous substances contamination. A subsequent environmental assessment revealed tar-like and slag materials in the wetlands.

In 1996, Carson Harbor sued defendants Unocal Corporation (“Unocal”), the City of Compton, the City of Carson, and the County of Los Angeles (“the Government Defendants”); Richard G. Braley, Walker Smith, Jr. and Carson Harbor Village Mobile Home Park (“the Partnership Defendants”); and the California Department of Transportation and W. Van Loben Seis (“Caltrans”).

1

Its complaint alleged claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq., and the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq. It also pleaded state law claims for nuisance, trespass, injury to easement, indemnity, and negligent nondisclosure.

2

Carson Harbor alleged that Unocal, which leased and used the property for petroleum production between 1945 and 1983, had dumped the tar-like and slag materials onto the property. It asserted that the Partnership Defendants were liable for the contamination as past owners of the property, and it maintained that the Government Defendants, which conducted operations upstream from the property, were liable for lead deposited on the property through stormwater run-off. Carson Harbor sought to recover the costs of its cleanup, which totaled approximately $285,000, as well as damages arising from its inability to refinance the property.

On November 4, 1997, Judge Kim McLane Wardlaw entered summary judgment in favor of defendants on all claims except the state law nuisance and trespass claims asserted against Unocal.

3

See

Carson Harbor Village, Ltd. v. Unocal Corp.,

990 F.Supp. 1188 (C.D.Cal.1997). A Ninth Circuit panel reversed, in part, the entry of judgment on the CERCLA and indemnity claims. That decision was subsequently withdrawn, however, and, on October 24, 2001, the court issued an

en banc

opinion reversing the entry of summary judgment in favor of Unocal and the Government Defendants on the CERCLA claim, and in favor of the Partnership Defendants on the indemnity claim. See

Carson Harbor Village, Ltd. v. Unocal Corp.,

270 F.3d 863, 873, 888 (9th Cir.2001), cert. denied

sub nom. Carson Harbor Village, Ltd. v. Braley,

535 U.S. 971 , 122 S.Ct. 1437 , 152 L.Ed.2d 381 (2002). The case was remanded to the district court, and assigned to this court for handling.

4

Pursuant to the court’s scheduling order, the Partnership Defendants, the City of Compton, the City of Carson, the County of Los Angeles, Unocal, and plaintiff conducted further discovery necessitated by

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the Ninth Circuit’s order. Each now moves for summary judgment.

5

I. FACTUAL BACKGROUND

Plaintiff Carson Harbor Village, Ltd. is a limited partnership owned entirely by James Goldstein and his corporation, Gold-stein Properties, Inc. Goldstein, who is the President and sole shareholder of Gold-stein Properties,

6

is a highly-educated, sophisticated businessman with extensive experience in the purchase of mobile home parks.

7

Carson Harbor is the current owner of the Carson Harbor Village Mobile Home Park, located at 17701 Avalon Boulevard in Carson, California (“the property”).

8

A. The Property

The property is a 420 space mobile home park on seventy acres in the City of Carson.

9

It includes approximately seventeen acres of marsh, which bisect the property, traversing it from northwest to southwest.

10

Plaintiff asserts that this area has been designated a protected wetlands and

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habitat area.

11

The property is subject to deed restrictions designed to preserve the area-in its natural condition. These prohibit construction or dumping on the land, covering the land with non-natural cover, removing natural resources, fishing or trapping animal or aquatic life without the permission of the California Department of Fish and Game, removing timber, or allowing members of the public to trespass upon or use the property.

12

Historically, the site has been used both as a dairy farm and for oil production and storage.

13

Aerial photographs show oil use dating back to 1941.

14

Unocal had an oil and gas lease at the property from 1945 to 1977, when it signed a Quitclaim Deed. It continued to hold a non-exclusive easement across the land subsequent to that time.

15

In 1977, a special use permit issued, that permitted conversion of the site to “a complete mobile home community.”

16

The mobile home park currently there was built in approximately 1978.

17

Carson Harbor purchased the property from the Partnership Defendants in 1983 for

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$7,980,000.

18

Plaintiff and Carlsberg Financial Corporation acquired title to the property on or about April 1, 1983.

19

Plaintiff purchased Carlsberg’s interest in 1986, and became the sole owner of the property at that time.

20

Carson Harbor’s owner, Goldstein, testified that he did not recall any discussion, inquiry or investigation regarding the environmental condition of the property at the time it was purchased in 1983.

21

Dennis Olson, who conducted a due diligence inspection of the property on plaintiffs behalf, recalls that he looked at the wetlands, but did not physically enter the area to inspect its bottom.

22

Carson Harbor knew that oil operations had been conducted on the property at the time it purchased the site in 1983.

23

It did not perform tests or soil sampling on or beneath the property to determine if there was contamination prior to purchase.

24

B. Tar-Like And Slag Materials

In or about 1993, Goldstein wanted to refinance the property at a, lower interest rate, and submitted a loan application to G.E. Capital Corporation.

25

The lender retained Law/Crandall to perform an environmental assessment of the property, which revealed “a tar-like patch in the ravine” at the site.

26

Tar-like and slag materials that contained high levels of lead

27

were discovered in the wetlands area in 1993 or 1994.

28

The tar material was visible on the surface and covered an area approximately 20 feet by 30 feet. Subsequent characterization and excavation revealed that the tar-like and slag materials covered an area approximately 170 feet long and 75 feet wide, and extended to varying depths of approximately one to five feet. The slag material varied in both size and depth, but appeared to be most concentrated near the tar-like deposit.

29

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1. Source Of The Tar And Slag

Carson Harbor alleges that Unocal generated and disposed of the tar and slag in the wetlands.

30

Unocal employee Richard Salisbury reported on March 27, 1995, that “[t]here ha[d] been numerous spills to [a] storm drain [entering the property] including at least one in the 1980s from one of our wells.”

31

At his deposition, Salisbury clarified that he knew of only one spill firsthand, but that he had heard of others from past foremen in the field.

32

Salisbury stated that the tar-like material had the same consistency as material that forms at “oil and gas tank farms” when a tank or pipeline leaks and the leaks are absorbed into the soil.

33

Plaintiffs expert, Dr. Hassan Amini, asserts that the tar material was most likely tank bottom sludge from oil production and refining operations conducted by Unocal on or around the property. Specifically, he states that the tar material contained high concentrations of petroleum hydrocarbons, lead, and certain volatile organic compounds (BTEX), all of which are characteristic of materials originating from oil production. He notes further that the slag material had volcanic-like characteristics indicative of material that originated from a high-temperature furnace process and was subjected to abrupt cooling.

34

Amini and plaintiffs second expert, Dr. Robert Ghirelli, as well as James Ross, a senior water resource control engineer at the Regional Water Quality Control Board (“RWQCB”), all believe that the tar-like and slag materials were deposited on the property through some means other than storm drains.

35

Dr. Amini, for example, testified that he did not believe the tar and slag were brought onto the property by stormwater.

36

Carson’s expert, Dr. Robert Morrison, similarly concluded that it was “highly improbable” the tar and slag washed onto the property through the stormwater system.

37

Carson Harbor alleges on information and belief that the tar and slag were generated and deposited on the property between 1961 and 1977.

38

Dr. Amini notes that the wetlands traverse the mobile home community and that removal of the tar-like materials required 100 truckloads. He concludes that this quantity of tar and slag materials could not have been

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deposited on the property without being noticed and reported by at least some of the mobile home community residents, and thus that the materials were most likely discharged into the wetlands before the mobile home park was constructed in 1977.

39

rphg evidence presented in connection with the 1997 motions for summary judgment, however, caused Judge Ward-law to find that the tar-like and slag materials had been deposited on the property prior to 1947. See

Carson Harbor Village, supra,

990 F.Supp. at 1194 .

40

Plaintiff concedes that Carson did not cause the tar or slag to be deposited on the property.

41

Frank Sotelo, Compton’s Street Superintendent, contends that Compton also did not participate in disposal of the tar and slag.

42

2. Investigation Of The Tar And Slag

In December 1993, as part of its effort to refinance the property, Carson Harbor hired Park Environmental Corporation to investigate the contamination at the property.

43

Ed Furu supervised the collection and analysis of nineteen soil samples, and presented a summary of his findings to Carson Harbor’s attorney, Richard Close, in a June 10,1994, letter. Furu found that total lead concentrations in the samples ranged from non-detectable to 2,300 parts per million (“ppm”). He also found that WET protocol analysis of five soil samples revealed concentrations of soluble lead ranging from 15 to 86 ppm

44

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Carson Harbor subsequently hired McLaren Hart to investigate further and to remediate the contamination.

45

The impacted area was identified through visual inspection and confirmed through followup sampling.

46

A test of a sample of the tar-like material revealed that it had a Total Threshold Limit Concentration (“TTLC”) of lead of 1,600 ppm. A similar test of a sample of slag showed that it had a TTLC lead content of 590 ppm and a Soluble Threshold Limit Concentration (“STLC”) of lead of 12 ppm.

47

McLaren Hart considered various alternatives for remediating the tar-like and slag materials in the wetlands, but concluded, “due primarily to the concentrations of lead in the tar material, the sensitive nature of the wetlands, and the surrounding residential uses of the Property, [that] leaving the material in place was not a feasible solution.”

48

Dr. Amini testified that lead was inherent in the tar-like and slag materials.

49

While he believed that lead from other sources may also have been present in the tar, he was reasonably certain that one sample collected from approximately two feet inside the tar contained only lead that was inherent to the material.

50

Based on this sample, Dr. Amini concluded that the lead inherent to the tar was sufficient to require its removal as a hazardous substance.

51

He noted that the tar had a high viscosity, such that it would eventually seal itself and prevent the sinking of any lead particulate inside the tar.

52

He also testified that the slag had a vesicular texture and porosity that made it possible for lead coming from the surface to sink into the slag as a particulate.

53

C. Whether Additional Lead Was Deposited Through The Storm Drain System

On June 10, 1994, Park Environmental completed a limited Site Assessment designed to evaluate the potential presence of lead in the soils within the natural drainage wetlands area of the property. It found there were sufficient lead concentrations to necessitate reporting to regulatory agencies.

54

In defining the impacted area, McLaren Hart had only been concerned with the tar-like and slag materials.

55

On March 23, 1995, however,

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it sent the RWQCB a letter stating that Park Environmental's soil samples upstream from the tar and slag revealed lead values ranging from 11 to 220 ppm. McLaren Hart represented that Carson Harbor’s immediate removal action would clear the tar-like and slag materials from the property. It cautioned, however, that “[o]ther watershed water quality measures [would have to] be taken by the appropriate authorities to improve the water quality of the surface run-off entering the Carson Harbor Village park.”

56

1. Ownership And Maintenance Of The Storm Drain System

The cities of Compton and Carson, and the County of Los Angeles are public entities that operate a storm drain system.

57

Storm drains serving Compton, Carson and the County join together at various points,

58

and certain of them empty onto the marsh at the northeast corner of Carson Harbor’s property.

59

The drainage area upstream from the property is 2.4 square miles, and contains a mix of industrial and residential properties located in Carson, Compton and certain unincorporated County areas.

60

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There are two storm drain inlets located on the north portion of the property.

61

The storm drain system and streambed run through the marsh and connect to an outlet at the other end of the marsh, with the water running northeast to southwest.

62

There are surface water drains, concrete drainage channels, culverts and other outlets on the property that carry water from roadways and areas of the property outside the wetlands into the wetlands area.

63

Defendants contend there is no evidence as to when the storm drains were built. A report submitted to Carson’s Mayor on February 21, 1984, however, indicates that the drains and outlets linked to the debris traps at the northern end of the property were installed by Caltrans as part of the construction of the Artesia (91) Freeway. This project was completed in 1976.

64

The report states that Caltrans relinquished responsibility for maintenance of the drains and debris traps to Carson on May 8, 1980.

65

A December 8, 1983, letter from the Los Angeles County Flood Control District (“LACFCD”) to Carson’s City Engineer indicates that Carson at that point became responsible for maintaining storm drains constructed by Caltrans that were outside its right of way and within the city limits.

66

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Carson’s City Engineer acknowledges that Carson had an easement over plaintiffs property from December 1984 to October 1985, when it quitclaimed its interest to the LACFCD. The interest quitclaimed included the easement to operate and maintain storm drain facilities on the property.

67

The City Engineer contends that Carson does not presently own the storm drain system in Carson or operate the storm drain inlets on the northern portion of plaintiffs property.

68

Compton does not appear to dispute that it had or has operational responsibility for certain of the storm drains entering plaintiffs property.

2. Whether Stormwater Is A Source Of The Lead Deposits At The Site

According to plaintiffs expert, Dr. Richard Gersberg, there is a 99% probability that the stormwater that flowed onto the property contained lead.

69

Gersberg bases this conclusion not on site specific data, but on several general studies regarding lead contamination in urban and stormwater runoff in Los Angeles County.

70

The head of the County’s Industrial Waste Control Program, Carl Sjo-berg, similarly stated that he would not be surprised to hear of lead in the storm drain system because “there’s been incidents throughout the system over the years where lead has been or may have been a pollutant.”

71

Dr. Gersberg states that lead is removed from water very efficiently by wetlands areas, and thus there is a high likelihood that lead that enters a wetlands is “retained within the site and will accumulate in soils, plants, and biota on the proper

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ty.”

72

He concludes, based on the size of the discharge pipe at the site, that quite a bit of water could come out of the pipe if it filled up, and that the wetlands could be partially under water during a good rain.

73

Compton’s expert, Edward Faeder, states, by contrast, that “[t]he relatively low soil sample readings at the northeast end of the marsh ... support the observation that stormwater is not the source of [the] marsh lead” because, “[i]f the storm drain inlets were the source of the lead, these soil lead samples from the northeast end should have been substantially higher.” Faeder notes that the average downstream lead levels were not substantially different than the upstream values, and concludes as a result that there was no runoff lead source emptying onto the site.

74

Faeder also asserts that samples taken from the storm drain mouth contained a level of lead that was well below the drinking water standard.

75

Plaintiffs expert, Dr. Amini concedes that he would expect the concentration of lead to be higher in the northeast portion of the property

“if

the inlet of the marsh where the stormwa-ter is coming in was not a scour area but a depositional area.” He does not state, however, whether the area tested was a “depositional area” or a “scour area.”

76

Faeder opines that dry deposition may account for the nominal, background levels of lead found throughout the site.

77

Gers-berg acknowledges that “dry deposition” may account for some percentage of the lead found on the property, but asserts there is nonetheless a high probability that the lead at the site came from stormwa-ter.

78

Gersberg states that both dry deposition and stormwater flowing from within the trailer park are “obviously” sources of lead in the wetlands, but are insignificant compared with upstream drainage from the storm drain

79

3. When Lead May Have Been Deposited On The Property By Stormwater

The Ninth Circuit held there was “no evidence that there was any lead-contaminated stormwater runoff to the property prior to 1994....”

80

The court considers this statement the law of the case for purposes of this summary judgment proceeding.

4. Adequacy Of On-Site Sampling And Testing

As noted, plaintiffs expert, Dr. Gers-berg, relied on general information and studies in forming the conclusion that stormwater likely carried lead onto the property. By contrast, another of plaintiffs experts, Dr. Ghirelli, testified that

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“some kind of sampling of the stormwater” would be appropriate,

81

while a third, Dr. Richter, testified that a party might “want to sample run-off” if it wished to determine the source of the lead.

82

Carson’s expert, Dr. Robert Morrison, opines that sampling data from the site is not sufficient to permit a reasonable scientific determination that the source of the lead found there is stormwater.

83

While plaintiff’s Dr. Amini concluded that stormwater runoff was the most likely source of the lead detected in the flood control channel,

84

he stated he could not determine, based on existing samples and information, “that off-site stormwater is the source of any lead found at the Carson Harbor Park”- because he had not “gone to exhaustive studies to eliminate other sources of possibilities of lead contamination.”

85

Specifically, Amini admitted that he did not investigate whether any NPDES permits were held by industrial facilities upstream of the property.

86

He also conceded that no attempt had been made to distinguish between naturally occurring lead and lead that was deposited at the site by an outside source.

87

He could not rule out aerial deposition as a source of the lead found in the wetlands,

88

and noted that “there [were] statistical methods that [would] give ... [a] more likely source of the material.”

89

■ Dr. Amini testified that surface and ground water on the site “are practically in direct communication,” and that in some rare occasions the groundwater may “feed” the. surface water. This would happen, he stated, because “[t]he saturated sediments in the flood control channel ... act like a sponge during the high flood water and high groundwater recharge time, and at the time of the receding of the flood water, [they could] return some of that water back to the channel.”

90

For this reason, Dr. Amini conceded that he could not rale out groundwater as a source of the lead in the wetlands without testing the groundwater.

91

Dr. Gersberg could not say with any reasonable degree of scientific certainty what percentage of lead at the site,- if -any, was deposited by stormwater.

92

He ac

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knowledged that no soil samples had been taken near the stormwater outlets,

93

and that, while a debris sample taken near the property revealed a lead concentration of more than 100 ppm, he could not conclude on the basis of that one sample that the lead on the property had been deposited by stormwater.

94

Gersberg also acknowledged that he could not tell from the sampling data as a whole whether the entirety of the lead came from the tar or from stormwater, that he could not attribute the lead to a specific source, and that it was possible the lead found outside the tar area could have come from sources such as tar, direct deposition, paint, illicit discharges, or on-site stormwater.

95

Neither party has proffered evidence regarding the amount of stormwater flowing onto the property.

96

No stormwater samples were collected, although four surface water samples were taken at the entrance to the property.

97

One water sample was collected from each of the two storm drain inlets on the north portion of the property.

98

These showed lead detection levels of 13 parts per billion and below detection respectively.

99

Water samples from storm drains 1A and 2A registered “non-detect” when tested for organic lead.

100

These samples were taken from a pool of standing water in the storm drain mouth, not from a runoff event.

101

Carson’s expert, Dr. Morrison, states that 13 parts per billion of lead is not significant from a regulatory standpoint, and concludes that the results of the tests from the two storm drains are inconsistent with lead being transported via stormwa-ter into the storm drain channel.

102

Dr. Amini concurs, stating that the results of the storm drain tests could not form the basis for a finding that the lead in the park came from the stormwater.

103

The parties agree that the surface water tests do not provide adequate information to permit the drawing of conclusions regarding the quality of the water that has historically entered the site.

104

5. NPDES Permits

Carson Harbor alleges that stormwater discharge contaminated the wetlands, causing it to incur necessary response costs under CERCLA.

105

A National Pollution Discharge Elimination System (“NPDES”) permit is required to discharge industrial liquids into the storm drain system and to discharge stormwa-

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ter.

106

Prior to 1990, there were no NPDES permits regulating stormwater runoff on the property

107

because NPDES permits were not required for municipal stormwater and urban runoff prior to that date.

108

In 1990, NPDES Permit No. CA0061654 (“the 1990 permit”) was issued to the County of Los Angeles and certain identified co-permitees, including the cities of Compton and Carson.

109

On July 15, 1996, NPDES Permit CAS 614001 (“the 1996 permit”) was issued, superceding the 1990 permit.

110

The northeast comer storm drain pipe system, the streambed, and the southwest corner storm drain pipe system are all part of, and operated pursuant to, the NPDES permits.

111

(a) City Of Carson

Carson’s start date for compliance with the 1990 permit was July 1, 1993.

112

At the time plaintiff filed suit on May 7, 1996, the 1990 Permit was the only NPDES permit under which Carson was operating.

113

John Wisz, Carson’s Civil Engineering manager, states that the city has been in compliance with the 1990 permit at all relevant times, and that it has implemented all Best Management Practices (“BMPs”) required by the permit.

114

Plaintiff did not identify during discovery any BMPs that Carson had failed to implement, asserting only that it did not know of any plan the city had implemented to comply with the permit.

115

Plaintiffs ex

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pert, Dr. Ghirelli, opined that Carson had, in fact, complied with the 1990 permit.

116

Ghirelli observed that the Water Board knew about the contamination on Carson Harbor’s property at the time it drafted the 1996 permit, and did not single out the property in the permit for special protection.

117

Rather, the responsibilities the 1996 permit imposed on Carson concern compliance with the Stormwater Management Plan and a County Plan to be developed under the permit.

118

The 1996 permit, moreover, expressly recognizes that Carson is not responsible for discharges it cannot control.

119

Wisz asserts that Carson has been in compliance with the 1996 permit at all relevant times, and that it has implemented each of the required BMPs called for by the permit.

120

Neither Wisz nor Dr. Amini is aware of any RWQCB order stating that Carson has failed to comply with its NPDES permits.

121

Wisz maintains that neither the 1990 nor the 1996 permits required Carson to treat stormwater or prevent stormwater from entering plaintiffs property.

122

Plaintiff does not dispute that Carson’s NPDES permits do not contain effluent limitations for stormwater discharges.

123

Wisz also asserts that Carson is not required to monitor stormwater under either of the permits, and that it is not responsible for runoff from state facilities such as the 1-91 Freeway.

124

Carson Harbor, however, cites a 1983 letter from the LACFCD to Carson’s City Engineer stating that the city is responsible for maintaining storm drains located outside Caltrans property and within the city limits.

125

(b) City Of Compton

Compton’s Street Superintendent, Frank Sotelo, contends that the city has implemented BMPs that include: (1) a maintenance program for the storm drain system in the City streets; (2) stenciling warning signs on City streets that pouring hazardous substances into the storm drain system is prohibited; (3) conducting classes under the supervision of CalOSHA on storm drain safety and procedures; (4) regularly sweeping all City streets; (5)

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maintaining staff who respond to citizen requests; (6) promptly and regularly cleaning the storm drains; (7) promptly responding to citizen requests for drain repairs or maintenance; (8) providing a twenty-four hour stand-by crew to respond to emergencies; (9) sending employees to various water workshops; (10) retaining a professional consultant to advise and assist the City regarding storm drain and storm-water issues; (11) attending monthly per-mittee meetings; (12) participating in the executive Advisory Committee; (18) attending Los Angeles River Watershed Permittee meetings; (14) subscribing to publications providing educational and practical assistance in this area; (15) promoting recycling; and (16) participating in the county-wide Hazardous Waste Management Program.

126

There is no evidence that Compton has violated its NPDES stormwater permits, and plaintiffs expert, Dr. Ghirelli, acknowledged that Compton was in compliance with the 1990 NPDES permit.

127

As of 1997, Sotelo had been employed by Compton for twenty-one years. He testified that throughout his employment, the city had had an ordinance that prohibited the disposal of pollutants, including lead, in the storm drain system.

128

He also asserted that, at all times prior to 1990 when he was employed, Compton had procedures in place to prevent pollutants from entering the storm drain system. In addition to the ordinance, these included regular street sweeping, public trash receptacles, maintenance of the storm drain lines and system, and sand bagging around catch basins in the event of a spill.

129

(c) County Of Los Angeles

Gary Hildebrand, a Supervising Civil Engineer for the County of Los Angeles, states that the County developed and implemented BMPs as required by the 1990 permit, with each permittee city responsible for its own BMPs.

130

He also states that the County has complied with BMPs and monitoring requirements under the 1996 permit.

131

(d) All Defendants

Plaintiffs expert, Dr. Ghirelli, asserts that the permits require the County, rather than Compton or Carson, to monitor the site.

132

He also notes that the Water Board does not consider individual cities responsible for runoff from state facilities such as Caltrans.

133

In granting the Government Defendants’ motions for summary judgment on Carson Harbor’s CWA claims, Judge Wardlaw

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held that Carson Harbor’s evidence fell “considerably short of meeting its burden on summary judgment that the Government Defendants violated either the 1990 or 1996 permits.”

134

She also found that “[Carson Harbor’s expert] ... acknowledged that all of the Government Defendants were in compliance with the 1990 permit and expressed no opinion with regard to the 1996 permit.”

135

Judge Ward-law granted Carson’s motion for summary judgment on the state law claims — a judgment that was later affirmed by the Ninth Circuit — “[bjecause plaintiff ha[d] not shown that the Government Defendants failed to comply with the [1990 and 1996] permits [and] any pollutants discharged into the stormwater were [thus] allowed pursuant to the authority of the state.”

136

Carson Harbor Village, supra,

990 F.Supp. at 1197 . Carson Harbor does not dispute that the Ninth Circuit ultimately held there was insufficient evidence to conclude that the Government Defendants had violated the terms of their NPDES permits.

137

D. Remediation Of The Property

1. Cleanup Of The Tar-Like And Slag Material

The RWQCB for the Los Angeles Region supervised Carson Harbor’s remediation of the property.

138

James Ross of the RWQCB never found that the tar and slag constituted “an imminent and substantial threat” to human health or the environment.

139

Rather, he concluded that there was a “low potential for a health threat on the site,” and that the preponderance of the data fell below health risk guidelines.

140

Ross testified that he did not direct Carson Harbor to remove substances from the wetlands, but that it volunteered to remove the tar-like and slag materials.

141

Unocal’s Richard Salisbury, however, prepared a memorandum on May 1, 1995, stating that Ross had confirmed in a meeting that “he wantfed] the ‘slag-like’ and ‘tar-like’ material removed from the creek bed .... [and] that his objective was to remove it as cheaply and non-disruptively as possible.”

142

Ross, moreover, told

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McLaren Hart in a February 1995 letter— captioned “Remediation Workplan Approval” — that its proposed remedial action had been “approved” by the RWQCB, subject to certain modifications, which included classification of the slag material as hazardous waste and removal of all residual soil contamination except that registering below certain measurement criteria.

143

Dr. Amini testified that Carson Harbor’s remediation effort focused on removal of the tar-like and slag material from the stream channel.

144

All of the tar-like and slag materials were removed, with the exception of some material that was within the root zone of a protected willow tree.

145

McLaren/Hart issued a Closure Report on September 13, 1995, which discussed removal of the tar-like and slag materials from the marsh, as well as verification sampling of lead concentration levels in the excavated area.

146

The report noted that approximately 1,043 tons of tar-like and slag materials had been removed from an approximately 9,000 square foot area that had an average depth of two feet.

147

Following removal of the tar-like and slag materials, McLaren/Hart collected twenty verification samples.

148

These revealed TTLC lead concentrations below 1,000 ppm. Only four samples had a total lead concentration above 50 ppm. Follow-up analysis of these four samples indicated soluble lead concentrations that marginally exceeded the Soluble Threshold Limit Concentration of 5 ppm.

149

McLaren Hart submitted its Closure Report to the RWQCB on October 11, 1995, stating that it had “achieved all the goals of [its] remedial action plan” and therefore “submitted [the] clean closure report in request for closure of the case.”

150

The RWQCB reviewed McLaren Hart’s clean closure report, and conducted independent inspection and testing at the property.

151

On October 18, 1995, the RWQCB sent Carson Harbor a letter captioned “Closure Approval,” which stated;

‘We have reviewed your October 11, 1995, report for the subject site which requests] closure of the project. In addition, staff inspected the site on October 17, 1995, to verify the extent of the removal actions completed. Staff has also taken verification samples from the bottom of the excavated areas, on July 26, 1995, and have determined that the removal is complete to the extent required by this Board. On the basis of the above, we have concluded that all of the requirements established by this Board in our RAP approval letter dated February 27, 1995, have been complied with. In addition, the contamination has been successfully removed[, and] the remaining soil in the bottom of the water

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course poses no further threat to surface waters of the State. We, therefore, conclude that no further action is required at this site.”

152

Ross testified that he would not have sent this letter if he believed that the tar-like and slag material on the property was a continuing threat to surface water.

153

2. Compliance With The National Contingency Plan

Dr. Amini testified that McLaren Hart considered the National Contingency Plan, 40 C.F.R. Part 300, in undertaking its remediation effort, but did not strictly follow the plan. Amini considered the project a removal action rather than “a full-blown remedial action under CERCLA,” and therefore did not feel “it was necessary to pursue [the] very cumbersome and elaborate procedure prescribed in [the] N.C.P.”

154

He stated that the project “did not require, necessarily, [a] full blown feasibility study, risk assessment, public involvement, and many other requirements ....”

155

Dr. Amini was not aware of any health risk assessments conducted at the site during remediation. Although he recommended that an assessment be conducted, attorney Richard Close decided to defer performing such an evaluation.

156

Dr. Am-ini did not know of any reports that documented Carson Harbor’s consideration of remediation alternatives.

157

He also did not know of anyone who solicited public comment regarding the remedial action plan on plaintiffs behalf.

158

Carson Harbor’s Goldstein similarly did not know of anyone acting on the partnership’s behalf who held public meetings or gave public notice concerning the remedial action plan.

159

Carson Harbor cites a number of letters as evidence that its response action fully complied with the National Contingency Plan.

160

Specifically, it contends it

*1145

complied with the requirement that it conduct a health risk assessment because it met the cleanup levels prescribed by the RWQCB, and these were designed to protect public health and the environment.

161

Similarly, it contends it complied with the public comment requirement. The admissible evidence plaintiff proffers in support of this assertion indicates that it made State Senator Ralph Dills aware of the problem, leading his representatives to participate in a number of meetings and discussions regarding the situation; and that it held meetings with the interested parties prior to implementation of the remedial action plan.

162

Carson Harbor notes there was sufficient public awareness of the problem that an article was published in a local newspaper regarding contamination at the wetlands.

163

Additionally, it

*1146

contends it conducted a feasibility study as required by the National Contingency Plan, considering both a “no action” alternative and removal of the tar-like and slag materials.

164

More specifically, Carson Harbor asserts that: (1) the Park Environmental Report and remedial action plan are the functional equivalent of the remedial investigation/feasibility study and remedial design/remedial action plan required by federal law; (2) the RWQCB considered whether the tar and slag needed to be removed, and required their removal; and (3) Dr. Amini testified that “the only feasible alternative was to excavate the tar and slag material and dispose of it offsite.”

165

The purpose of the remedial action was “to outline the procedures for the removal of a ‘tar-like’ and ‘slag’ waste material ... in accordance with the standards of solid waste handling and disposal (California Code of Regulations, Title 14).”

166

The plan discussed the results of the sampling conducted by Park Environmental and McLaren Hart; noting that “the highest concentrations of metals and petroleum hydrocarbons [were] associated with the ‘tar-like’ and ‘slag’ waste material,” it recommended that those materials be removed, and that no action be taken outside their immediate area.

167

Removal was the only remedial alternative identified in the plan.

3. Remediation Of Lead Outside Of The Tar And Slag Area

Dr. Amini testified that removal of the tar and slag from the site was the appropriate remedial action, and was the work performed by McLaren Hart.

168

He did not recommend further remediation. Although he knew that lead was present on the property outside the area of the tar and slag, Dr. Amini did not believe the lead posed a danger to aquatic organisms.

169

He also did not know of any existing groundwater quality issues following removal of the tar and slag, and thus did not feel he needed to recommend remediation of other sources.

170

Nonetheless, he remained concerned about possible risk to the groundwater through sources that were not addressed by the removal of the tar and slag.

171

RWQCB’s Ross concluded that the level of contaminants outside the tar and slag area was not unusual or unexpected, and did not pose a significant threat to the environment or the residents of the mobile

*1147

home park.

172

As a consequence, he did not require that Carson Harbor conduct groundwater testing because “it didn’t appear warranted.” In its letter approving Carson Harbor’s proposed remedial plan, however, the RWQCB noted that the soil remaining after excavation of the tar and slag needed to be below 50 ppm TTLC and 5 ppm STLC.

173

Compton’s expert, Dr. Jenkins, concluded from the existing soil data that, with the exclusion of samples identified as tar or slag, the concentration of lead in the soil samples ranged from 4 to 370 mg/kg, with an average concentration of 63 mg/kg. He stated that these numbers fell well within the ranges of lead reported for soils and wetland sediments.

174

Although Jenkins concluded that the concentrations of lead in the soils should not pose a risk to soil invertebrates or microbes, he found that they exceeded the soil benchmark for plants.

175

Dr. Faeder concluded that the aggregate data was below the average background for the geographic area, despite the existence of “one deviant point.”

176

Goldstein is not aware that any governmental agency required further cleanup or remedial work in the marsh where the tar-like and slag materials were removed, and no subsequent cleanup has been done.

177

Judge Wardlaw previously entered summary judgment in defendants’ favor on Carson Harbor’s RCRA claim, stating that it had failed to establish there was imminent danger to human health or the environment.

178

Plaintiff did not appeal this ruling, and admits that the property poses no imminent or substantial danger to health or the environment.

179

E. Continued Attempts To Refinance The Property

Mark Hansen of Hansen-Davies Financial Group was Goldstein’s primary contact regarding the 1993 G.E. Capital loan application.

180

Hansen testified that he had discussions with the lender’s environmental consultant, Law/Crandall, regarding the loan throughout September and November 1993, after the tar-like materials had been discovered, and that he continued

*1148

to believe during this period that the loan would ultimately close.

181

After the tar-like materials were found, Law/Crandall requested permission to conduct an underground water test at the property.

182

Goldstein had hired Park Environmental to “assist with obtaining refinancing for the park,” and it advised Gold-stein not to allow groundwater testing.

183

Goldstein told Hansen there was no reason to test the groundwater because there was no evidence that it might contain hazardous substances.

184

Goldstein ultimately refused to permit Law/Crandall to conduct the test. While he states he was willing to perform substitute tests demonstrating that the property did not pose a threat,

185

Goldstein acknowledges that loan negotiations terminated because the parties were unable to reach agreement on the underground water test.

186

G.E. representative Brian Mills states the loan did not close because the recommendations in Law/Crandall’s Phase I report were not followed.

187

He also states he told Carson Harbor that G.E. would not go forward with the loan if a “Phase II report” was not prepared.

188

Hansen did not understand that G.E. was prepared to fund the loan if a groundwater test was conducted. Rather, it was “prepared to move forward with the loan if the[ ] environmental consultants concluded that the site didn’t pose an environmental threat.”

189

After the negotiations with G.E. terminated, Goldstein decided there was “no sense in going immediately to seek other lenders with the known environmental problems” on the site.

190

Carson Harbor did have discussions with other lenders at a later point, however, and no lender refused to refinance the property for environmental reasons or requested that plaintiff test the groundwater.

191

Union Bank told Goldstein it did not have the funds necessary to make the loan; Goldstein does not know whether this was the actual reason Union Bank terminated loan discussions.

192

He terminated discussions with other lenders because the loan terms offered were not satisfactory.

193

Bank of America ultimately refinanced the property in September 1997. Carson Harbor obtained $15,895,000 from the refinance.

194

A new Phase I environmental study was conducted, and Bank of America

*1149

concluded “there were no environmental issues that would preclude them from lending on the property.”

195

F. Rent Increase Granted To Plaintiff

On or about January 22, 1997, the Carson Mobile Home Park Rental Review Board granted plaintiff a monthly increase of $58.70 for 407 of the mobile home park’s rent-controlled spaces.

196

The Board found that rent increases of 12.86% to 14.01% per unit would generate an additional $286,690.80 in annual rental income and allow Carson Harbor to maintain a profit level similar to that it had enjoyed following the 1994 rent increase hearing and prior to a rise in operating expenses.

197

The Board’s resolution identified the increased operating expenses that justified the rent hike as (1) the costs incurred in determining how to clean up contamination at the property, obtaining approval of a remediation plan, and implementing necessary remediation, and (2) the payment of disputed property tax assessments following resolution of a tax appeal.

198

It stated that part of the cleanup work had been financed by a $800,000 loan, and that that cost had therefore been allocated by the board over the 28-month life of the loan.

199

While noting that some claims for legal services related to the remediation were not allowed as operating expenses because they involved the preparation and filing of this action,

200

“[t]he Board did ... allocate some attorneys’ fees related to the wetlands remediation as a 1995 operating expense.”

Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Board,

70 Cal.App.4th 281, 294 , 82 Cal.Rptr.2d 569 (1999)

(“Carson Harbor v. Rental Review Board

”).

201

It also provided that “if any of the costs of preparing, obtaining approval of and implementing a remediation plan and cleaning up contami

*1150

nation in the marsh which were allowed as operating expenses by the Board are recovered in the Applicant’s litigation seeking recovery of those costs, ... the Park will be required to include that recovery, excluding any legal fees recovered, as income in the first rent increase application which follows that recovery and the recovery shall be counted in the income data for the last year for which financial data is submitted with that application.”

202

The board observed that many of the costs Carson Harbor had incurred were unusual rather than normal and recurring expenses, while the rent increase was to continue indefinitely.

203

This is borne out by the fact that tenants have continued to pay the higher rent since 1997.

Carson Harbor v. Rental Review Board, supra,

70 Cal.App.4th at 294 , 82 Cal.Rptr.2d 569 .

204

Carson Harbor’s rent control attorney, Casparian, states that property owners who are granted a rent increase because of decreased profits cannot receive another until their income drops or their expenses exceed the level considered in granting the increase.

205

Carson Harbor, in fact, received no additional rent increases until 2001.

206

G. Damages Sought By Plaintiff

Carson Harbor filed suit on May 7,1996, after it had completed its remediation of the tar-like and slag materials

207

It seeks to recover its incurred response, remedial and removal costs, i.e., (1) $231,797 for engineering and construction costs associated with site remediation; (2) a $52,744 hazardous waste generator fee levied by the State Board of Equalization; and (3) attorneys’ fees of $245,722 incurred in connection with the remediation.

208

Carson Harbor has not produced statements or a detailed accounting of the attorneys’ fees it seeks, so the court cannot determine whether they are “closely related” to its cleanup of the contamination.

209

Carson Harbor also seeks to recover the purported loss in value of the property due to contamination,

210

and the increased interest expense it incurred because it allegedly could not refinance the property due to the presence of hazardous materials.

211

As respects the diminution in value of the property, Goldstein asserts that any present buyer would seek a 20-25% reduction in the purchase price because of the environmental risk.

212

He admits he has not tried to sell the property and has no immediate plans to sell it.

213

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Finally, plaintiff seeks to recover attorneys’ fees and costs from the Partnership Defendants pursuant to an indemnity clause in the 1983 purchase agreement between the parties.

214

II. DISCUSSION

A. Standard Governing Motions For Summary Judgment

A motion for summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Fed.R.Civ.PROc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. See

Celotex Corp. v. Catrett,

477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof at trial, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. See

id.

If the moving party meets its initial burden, the nonmoving party must then set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Fed.R.Civ.PROC. 56(e).

In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See

T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass’n,

809 F.2d 626, 630-31 (9th Cir.1987). The evidence presented by the parties must be admissible. Fed.R.Civ.ProC. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See

Falls Riverway Realty, Inc. v. Niagara Falls,

754 F.2d 49 , 56 (2d Cir.1985);

Thornhill Pub. Co., Inc. v. GTE Corp.,

594 F.2d 730, 738 (9th Cir.1979).

B. CERCLA Claims

1. Legal Standard Governing CERC-LA Claims

Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq., “to provide for liability, compensation, cleanup, and emergency response for hazardous substances release into the environment and the cleanup of inactive hazardous waste disposal sites.”

3550 Stevens Creek Associates v. Barclays Bank,

915 F.2d 1355, 1357 (9th Cir.1990) (citing Pub.L. No. 96-510, 94 Stat. 2767 (1980)). To further this purpose, Congress created a private right of action for the recovery of certain response costs against “various types of persons who contributed to the dumping of hazardous waste at a site.”

Ascon Properties, Inc. v. Mobil Oil Co.,

866 F.2d 1149, 1152 (9th Cir.1989); 42 U.S.C. § 9607 (a). To establish a

prima facie

right to recovery under § 9607(a), a plaintiff must demonstrate that: (1) the site on which the hazardous substances are contained is a

*1152

“facility” as defined in CERCLA; (2) a “release” or “threatened release” of a “hazardous substance” from the facility has occurred; (3) the “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and ■ “consistent with the national contingency plan;” and (4) defendants are within one of four classes of persons subject to liability under § 9607(a). See

Carson Harbor Village, supra,

270 F.3d at 872 ;

3550 Stevens Creek, supra,

915 F.2d at 1358 . See also

Long Beach Unified School District v. Dorothy B. Godwin California Living Trust,

32 F.3d 1364, 1366-67 (9th Cir.1994).

2. CERCLA Claims Against Unocal

a. Compliance With The National Contingency Plan

A private party may not recover response costs under CERCLA unless the remedial actions generating those costs are consistent with the National Contingency Plan (“NCP”). 42 U.S.C. § 9607 (a)(4)(B).

215

See also

Washington State Dep’t. of Transp. v. Washington Natural Gas Co.,

59 F.3d 793 , 800 (9th Cir.1995) (“[A]ny ‘[non-government] person’ seeking response costs under § 9607(a)(4)(B) must prove that its actions are consistent with the NCP”).. The NCP is a plan promulgated by the EPA that delineates specific steps private parties must take in selecting a remedial action plan and cleaning up hazardous waste. See 40 C.F.R. Part 300. It is “designed to make the party seeking response costs choose a cost-effective course of action to protect public health and the environment.”

Washington State Dep’t. of Transp., supra,

59 F.3d at 802.

Under EPA regulations, private response action is “consistent with the NCP” if the action, evaluated as a whole, is in “substantial compliance” with certain procedural requirements, and results in a “CERCLA-quality cleanup.” See 40 C.FÍR. § 300.700(c)(3)(i). See also 40 C.F.R. § 300.700 (c)(4) (“immaterial or insubstantial deviations” will not render a response action inconsistent with the NCP). The NCP’s procedural requirements include,

inter alia,

that the party seeking response costs conduct a remedial site investigation ( 40 C.F.R. § 300.700 (c)(5)(vii)), prepare a remedial investigation and feasibility study (“RI/FS”) ( 40 C.F.R. § 300.700 (e)(5)(viii)), and provide an opportunity for public comment ( 40 C.F.R. § 300.700 (c)(6)). Unocal argues that Carson Harbor failed substantially to comply with the public comment and RI/FS requirements, and that summary judgment must be granted in its favor on plaintiffs CERCLA claim as a result.

(1) Whether Compliance Is An Element Of Liability

Several courts have held that a plaintiff must make a

prima facie

showing of NCP compliance to survive the entry of summary judgment on a CERCLA claim. See

County Line Inv. Co. v. Tinney,

933 F.2d 1508, 1517-18 (10th Cir.1991) (“... we affirm the district court’s holding that consistency with the NCP is an element of a CERCLA contribution claim, as well as its determination that the New Owners failed, on a fully developed record, to carry their burden of making a

prima facie

*1153

showing of this element on summary judgment”);

Public Service Co. of Colorado v. Gates Rubber Co.,

22 F.Supp.2d 1180, 1187, n. 4 (D.Colo.1997) (“To survive summary judgment, a plaintiff must therefore make a

prima facie

showing of [consistency with the NCP]”), 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 that defendant should have challenged plaintiffs NCP compliance at summary judgment to preserve the issue for appeal);

Sherwin-Williams Co. v. City of Hamtramck,

840 F.Supp. 470, 479 (E.D.Mich.1993) (granting summary judgment on a CERCLA claim for declaratory relief because plaintiff “will be unable to meet its burden of showing that its actions were consistent with the NCP”).

216

One court in this circuit has concluded, however, that failure to comply with the NCP “is not a defense to liability, but goes only to the issue of damages,” and that “inconsistency [with the NCP] is [therefore] not a basis for granting summary judgment on the liability question.”

Mid Valley Bank v. North Valley Bank,

764 F.Supp. 1377, 1389-90 (E.D.Cal.1991). The

Mid Valley

court found such a holding dictated by the Ninth Circuit’s decision in

Cadillac Fairview/California, Inc. v. Dow Chemical Co.,

840 F.2d 691 (9th Cir.1988). See

Mid Valley, supra,

764 F.Supp. at 1390 . In

Cadillac Fairview,

the court stated that “whether a response action is necessary and consistent with the criteria set forth in the contingency plan is a factual one to be determined at the damages stage of a section 107(a) action, rather than by the mechanism of prior governmental approval.”

Cadillac Fairview, supra, 840

F.2d at 695.

The court cannot agree with the conclusion in

Mid Valley

that compliance with the NCP is not an element of a

prima facie

case under CERCLA. The Ninth Circuit has consistently stated that incurring response costs that are necessary

and

consistent with the NCP is an essential element of a private CERCLA action. See, e.g.,

Carson Harbor, supra,

270 F.3d at 870-71 ;

3550 Stevens Creek Assocs., supra,

915 F.2d at 1358 ;

Ascon Properties Inc. v. Mobil Oil Co.,

866 F.2d 1149, 1152-53 (9th Cir.1989);

Cose v. Getty Oil Co.,

4

*1154

F.3d 700, 703-04 (9th Cir.1993).

217

But see

Washington State Dep’t. of Transp., supra,

59 F.3d at 798 (“The district court granted WSDOT’s motion as to the liability of WNG et al. under CERCLA on the ground that each defendant was a responsible ‘person’ under 42 U.S.C. § 9607 . The court stated that the defendants challenged liability only on the basis that WSDOT faded to comply with the NCP. However, failure to comply with the NCP is not a defense to liability, but rather a factual issue affecting damages”).

Cadillac Fairview,

moreover, is not to the contrary. There, the district court dismissed a private party’s CERCLA claim because it did not await governmental action respecting a site before commencing cleanup. The court held that “in order for a private response action to be ‘consistent with the national contingency plan,’ it must be ‘initiated and coordinated by a governmental entity, and not by a private individual acting alone.’ ”

Cadillac Fairview, supra,

840 F.2d at 693 -94 (quoting the district court’s order). The circuit court rejected this reasoning.

Id.

at 694-95 . In response to the defendant’s argument that dispensing with a requirement of preliminary government action might result in a defendant paying for cleanup actions, that were “inadequate or ill-conceived,” the court observed that the statute did “not allow recovery of any and all costs of response,” but only those that were “necessary” and “consistent with the national contingency plan.” It noted that whether response action is necessary and consistent with the national contingency plan is a fact question “to be determined at the damages stage of a section 107(a) action, rather than by the mechanism of prior governmental approval,” and observed that defendants would “have ample opportunity at trial to express their concern that the costs incurred by Cadillac Fairview in this case were unnecessary or inconsistent with the national contingency plan.”

Id.

at 695 .

As can be seen,

Cadillac Fairview

stands merely for the proposition that consistency with the NCP is an issue to be determined in the context of a § 9607(a) action for reimbursement, not one to be decided by obtaining governmental agency approval before commencing remediation. While compliance with the NCP is a fact question, it can, like any other fact question, be resolved on summary judgment where the evidence is undisputed. Cf.

Carson Harbor Village, supra,

270 F.3d at 872 (citing

Cadillac Fairview

for the proposition that the necessity of responses costs is a fact question, and that prior governmental approval is not required to render costs necessary). Accordingly, the question is whether the evidence presently in the record raises triable issues of fact regarding Carson Harbor’s compliance with the NCP.

218

*1155

(2) “Remedial” v. “Removal” Actions

A private party may recover response costs under § 9607(a) for expenses incurred in connection with a “remedial action” or a “removal.” Removal actions are “short-term action[s] taken to halt the immediate risks posed by hazardous wastes”

(Advanced Micro Devices, Inc. v. National Semiconductor Corp.,

38 F.Supp.2d 802, 810 (N.D.Cal.1999)),

219

while remedial actions are designed to achieve a permanent remedy.

220

See

Exxon Corp. v. Hunt,

475 U.S. 355, 360 , 106 S.Ct. 1103 , 89 L.Ed.2d 364 (1986) (“Governmental response consists of ‘removal,’ or short-term cleanup, § 9601(23), and ‘remedial action,’ or measures to achieve a ‘permanent remedy’ to a particular hazardous waste problem, § 9601(24)”);

Channel Master, supra,

748 F.Supp. at 385 (“The courts have consistently found that the removal category was to be used in that limited set of circumstances involving a need for rapid action, while non-urgent situations are to be addressed as remedial actions”);

Amland Properties Corp. v. Alcoa,

711 F.Supp. 784, 794 (D.N.J.1989) (“Removal actions are to be taken in response to an immediate threat to the public welfare or to the environment.... Remedial actions, on the other hand, ‘are generally considered long-term or permanent remedies’ ”).

Because of the exigency inherent in removal actions, the statutory requirements for NCP compliance relative to such actions are somewhat relaxed. See

Morrison Enterprises v. McShares, Inc.,

302 F.3d 1127, 1136 (10th Cir.2002) (“The NCP is a long and detailed list of procedures that must be carried out by federal and state governments when they are responding to hazardous waste releases. The NCP specifies requirements for the two types of response actions at CERCLA sites: ‘removal,’ which is generally characterized as a short-term response to reduce the immediate threat from the release to human health and the environment, and ‘remediation,’ which is generally characterized as a response action intended to permanently reduce or eliminate the threat from the release.... Both types of actions have substantial requirements, but the requirements for remedial actions are much more detailed and onerous. Most of the requirements for both removal and remedial actions have been made applicable to private parties that seek to perform their own cleanup actions at CERCLA sites ... ”);

Channel Master, supra,

748 F.Supp. at 385-86 (“ ‘[T]he distinction between [removal and remedial] actions is of no small importance, for whereas removal actions need only comply with ... relatively simple NCP requirements ... remedial actions must comport with the “more de

*1156

tailed procedural and substantive provisions of the NCP.”...’ The division of responses into the two categories of removal and remedial actions is designed to provide an opportunity for immediate action — a removal — without detailed review, where there is no time to safely conduct such a review due to the exigencies of the situation,” quoting

Amland, supra,

711 F.Supp. at 795 );

Versatile Metals v. Union Corp.,

693 F.Supp. 1563, 1577 (E.D.Pa.1988) (“Removal actions are not subject to the lengthy procedural requirements of the NCP since they are taken in response to an immediate threat”). See also

Public Service Co. of Colorado v. Gates Rubber Co.,

175 F.3d 1177, 1182 (10th Cir.1999) (“NCP requirements vary depending on whether the response action is characterized as a removal or a remedial action. Generally, a removal action costs less, takes less time, and is geared to address an immediate release or threat of release .... In broad contrast, a remedial action seeks to effect a permanent remedy to the release of hazardous substances when there is no immediate threat to the public health. Remedial actions usually cost more and take longer”);

Norfolk Southern Railway Co. v. Gee Co.,

No. 98 C 1619, 2002 WL 31163777 , * 31, n. 27 (N.D.Ill. Sept.30, 2002) (“The parties in this case have spent a significant amount of time attempting to define Norfolk Southern’s response action as either a ‘removal,’ ... or a ‘remedial action’.... In general terms, a removal action is more emergent and usually involves a short term remedy to protect the health of a community or the environment, ... while a remedial action is one that is longer term, more permanent in nature, and may be ‘taken instead of or in addition to removal actions ... ’. The apparent significance of this dispute is the parties’ understanding that the court’s interpretation of the NCP in the case of a removal action would be more lenient than in the case of a long term remedial action. Indeed, in a recent decision the Tenth Circuit has stated that both removal actions and remedial actions have substantial requirements, but the requirements for a remedial action are much more extensive”).

The NCP requires that a party undertaking a removal action conduct a removal site evaluation and review current site conditions. See 40 C.F.R. § 300.415 (a). It directs that the propriety of the contemplated removal action then be evaluated, considering several factors, including the actual or potential exposure of nearby human populations; actual or potential contamination of drinking water supplies; threat of fire or explosion; and other circumstances that may pose a threat to public health. See 40 C.F.R. § 300.415 (b). Finally, a party conducting a removal action must satisfy certain community relations requirements, including notification of affected citizens and providing a period for public comment. See 40 C.F.R. § 300.415 (n).

In contrast, a party initiating a remedial action is expected,

inter alia,

to conduct a remedial site evaluation ( 40 C.F.R. § 300.420 ) and complete an RI/FS before selecting the appropriate remedy ( 40 C.F.R. § 300.430 ). It must also satisfy certain community relations requirements, which include conducting interviews with various interested parties, preparing a community relations plan, publishing the proposed remediation plan in a local newspaper, providing a reasonable opportunity for oral comment on the plan, and ensuring that there is a public meeting during the public comment period. 40 C.F.R. § 300.430 (c), (f)(3). See also

Cytec Industries, Inc. v. B.F. Goodrich Co., 232

F.Supp.2d 821, 834 (S.D.Ohio 2002) (“In determining the appropriateness of a removal action, the NCP requires consideration of eight specific factors.... These factors illustrate the immediate nature of

*1157

removal activities, in that they include such factors as: actual or potential exposure to nearby human populations; actual or potential contamination of drinking water supplies; threat of fire or explosion; and other factors or situations that may pose threats to the public health.... In contrast, the NCP provisions regarding remedial actions reflect an overall goal ‘to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.’ ... See also [40 C.F.R.] § 300.430(e)(9)(iii) (requiring that any analysis of alternatives for a remedial action give consideration to such criteria as overall protection of human health and the environment, in both the short term and long term; as well as long-term effectiveness and permanence of the alternative)”).

Whether a party’s response is a removal action or a remedial action is a question of law that can be decided on summary judgment. See

Cytec Industries, supra,

232 F.Supp.2d at 832 ;

Advanced Micro Devices, supra,

38 F.Supp.2d at 809 . Here, the undisputed evidence demonstrates that Carson Harbor’s response was a remedial action as defined in the statute. The presence of the tar-like and slag materials on the property was first noted in 1993. Carson Harbor engaged two separate consultants thereafter to examine the extent of the contamination and determine an appropriate approach to remediation. The tar-like and slag materials were ultimately removed in 1995.

There is no evidence in the record that the materials posed the type of threat to human health and welfare that required immediate action. To the contrary, there is evidence that RWQCB’s Ross never considered the tar and slag an imminent and substantial threat to human health or the environment.

221

Citing the absence of such evidence, Judge Wardlaw entered summary judgment in defendants’ favor on Carson Harbor’s RCRA claim, stating that plaintiff had failed to establish the contamination posed an imminent danger to human health or the environment

222

See

*1158

Metropolitan Serv. Dist. v. Oregon Metal Finishers, Inc.,

32 Env’t. Rep. Cas. (BNA) 1102, 1990 WL 134537 , * 2-3 (D.Or. Sept.11, 1990) (concluding that the response measures taken by the plaintiff were remedial rather than removal actions because there was no evidence that contamination at the site posed an immediate threat to public health or the environment); Sher

win-Williams, supra,

840 F.Supp. at 475-76 (“The City has demonstrated no imminent threat to health or safety, and the extended and protracted nature of the cleanup indicate that the City has engaged in a remedial action”);

Channel Master, supra,

748 F.Supp. at 386-87 (“[Plaintiff] asserts that a removal is appropriate ‘if a threat to public health or welfare or the environment exists due to an actual or potential release.’ However, the presence of an actual or potential release is the threshold predicate for

all

actions under CERCLA, and thus [this] conclusion transforms

all

cleanups into removals, a result which is inconsistent with CERCLA and the NCP”).

Moreover, the RWQCB’s issuance of a clean closure report and the fact that plaintiff undertook no further remedial action indicate that removal of the tar-like and slag materials was intended to be a permanent remedy. While this alone is not determinative, it is a factor to be taken into consideration in determining-the proper characterization of the action. See

Raytheon Constructors, Inc. v. ASARCO Inc.,

No. Civ.A 96 N 2072, 2000 WL 1635482 , *13 (D.Colo. Mar.31, 2000) (stating the “a removal action is not converted into a remedial action merely because it achieves a permanent remedy,” but that the fact a permanent solution is achieved “tends to favor a finding that an action was remedial in nature,” citing

General Elec. Co. v. Litton Indus. Automation Sys., Inc.,

920 F.2d 1415 , 1419 & n. 4 (8th Cir.1990), abrogated on other grounds in

Key Tronic Corp. v. United States,

511 U.S. 809 , 114 S.Ct. 1960 , 128 L.Ed.2d 797 (1994));

Reynolds Metals Co. v. Arkansas Power & Light Co.,

No. LR-C-95-281, 1997 WL 580361 , * 5-6 (E.D.Ark. Jul.29, 1997) (accepting “that a permanent and total cleanup can, in certain circumstances, ... be characterized as a removal action,” but concluding that an excavation was a remedial action because “the uncontrovert-ed evidence indicates that the cleanup was a ‘permanent solution’ designed to permit the pursuit of another venture at the Site”).

Carson Harbor clearly considered its remediation of the tar-like and slag materials a “final” and “permanent” solution to environmental contamination at the site. The closure report McLaren Hart submitted to the RWQCB stated that “all the goals of [the] remedial action plan” had been achieved.

223

The RWQCB concluded that no further action at the site was required.

224

Carson Harbor’s owner, Gold-stein, stated that he knew of no additional remedial work that needed to be done, that

*1159

no government agencies had ordered a further cleanup of the property, and that no further remediation activities had been undertaken.

225

The permanence of the remedy, therefore, weighs in favor of a finding that Carson Harbor’s response was a remedial, rather than a removal action. Also supporting such a conclusion is the fact that Carson Harbor undertook the remediation to remove an impediment to its ability to refinance the property, not to respond to an emergent health or environmental threat. See

Reynolds Metals Co., supra,

1997 WL 580361 at * 8 (stating that one relevant factor is the “motivation for the action”).

Particularly given the lack of any immediate threat to public health or the environment, the court finds that the action Carson Harbor took was remedial and subject to the NCP requirements for such actions. See

Cytec Industries, supra,

232 F.Supp.2d at 838-39 (“The cleanup of Ponds 1 and 2 was not the result of an immediate release or threat of release of hazardous substances, but instead was the option chosen by Cytec when it had to either close the ponds or fit them with liners to comply with environmental regulations. That the cleanup of the ponds was not the result of any environmental emergency is further evidenced by Cytee’s decision to ship the contents of Pond 2 to cement manufacturers for reuse.... The court notes further that Cytec took the time to bring in a larger press when the original press did not remove the water from the sludge of Pond 2 to the satisfaction of the cement kilns. Thus, it appears that Cytec was not primarily concerned with the immediate removal of the hazardous waste, but instead was more concerned about accommodating the cement kilns who were reusing the wastes. In addition, Nau testified that the cleanup of Ponds 1 and 2 was to effectuate a long-term closure for those ponds”);

Public Service Co. of Colorado, supra,

22 F.Supp.2d at 1189-90 (“In this case, PSCO admits that it sought to remedy its environmental problems permanently. ... The extent of PSCO’s ability to plan its actions — both its initial PCB cleanup and the negotiated Consent Order — matches the policy behind the more complex, carefully planned remedial actions. In sum, I find that PSCO’s response was, as a matter of law, a remedial action. As such, it will be subject to the NCP standards for remedial actions referred to in 40 C.F.R. § 300.700 (e)(5)-(6)”).

(3) Compliance With The NCP In General

As noted, the NCP provides that a private cleanup effort will be deemed consistent with the NCP if “when evaluated as a whole, [it] is in substantial compliance with the applicable requirements [of the NCP] and results in a CERCLA-quality cleanup.” 40 C.F.R. § 300.700 (c)(3)(i). See 40 C.F.R. § 300.700 (c)(4) (a party that “substantially complies” with the requirements of the NCP may pursue a cost-recovery action);

Waste Management of Alameda County, Inc. v. East Bay Regional Park District,

135 F.Supp.2d 1071, 1100 (N.D.Cal.2001) (stating that the EPA shifted to this flexible “case-by-case” standard “to avoid discouraging private parties from cleaning up hazardous wastes for fear that recovery of their costs would later be precluded by less than perfect compliance with the NCP,” citing 55 Fed.Reg. 8792-94). See also

Louisiana-Pacific Corp. v. ASARCO, Inc.,

24 F.3d 1565, 1576 (9th Cir.1994) (holding that “strict compliance” is not required). Actions are not consid

*1160

ered inconsistent with the NCP simply because they deviate in “immaterial or insubstantial” respects from its requirements. 40 C.F.R. § 300.700 (c)(4).

Substantial compliance is “evaluated [by examining the party’s activities] as a whole.” This focus on the entirety of the cleanup, rather than on a checklist of required actions, responds to “concerns that rigid adherence to a detailed set of procedures should not be required in order to recover costs under CERCLA for private party cleanups.” 55 Fed.Reg. 8793. The EPA, in fact, specifically rejected a checklist approach because “a list of rigid requirements [might] serve to defeat cost recovery for meritorious cleanup actions based on a mere technical failure by the private party.”

Id.

In addition to showing that it substantially complied with the NCP requirements, a private party must also show that its actions resulted in “a CERCLA-quality cleanup.” A CERCLA-quality cleanup is one in which (1) the remedy is “protective of human health and the environment”; (2) it utilizes “permanent solutions and alternative treatment technologies or resource recovery technologies”; (3) it is cost-effective, and (4) it is selected after “meaningful public participation.”

Id.

See also

Waste Management, supra,

135 F.Supp.2d at 1100 .

(4) Compliance With The Public Comment Requirement

The public comment/community relations requirements for remedial actions include interviewing interested parties, including local officials and community residents, developing a community relations plan, publishing a brief analysis of the remediation plan in a major local newspaper, and offering a public comment period following publication of the planned remediation that includes the opportunity for a public meeting. See 40 C.F.R. § 300.430 (c), (f)(3).

226

The EPA has stated that it “does not believe ... the failure of a private party to pro

*1161

vide a public hearing should serve to defeat a cost recovery action if the public was afforded an ample opportunity for comment.” 55 Fed.Reg. 8795. It has also stated, however, that the NCP’s community relations provisions define the minimum level of public involvement necessary to ensure a CERCLA-quality cleanup. 55 Fed.Reg. 8766.

There is little evidence in the record demonstrating that Carson Harbor complied with the public commeni/community relations requirement.

227

Unocal’s Richard Salisbury testified that he attended two meetings with Carson Harbor representatives on May 4 and 8, 1995. Other parties were present, including RWQCB’s Ross, representatives of McLaren Hart, Park Environmental, CET Environmental, and a staff person for State Senator Ralph Dills, whose office had processed some citizen complaints regarding the site. The participants discussed whether the tar-like and slag materials should be removed; Ross ultimately stated, however, that the decision had been made to pursue removal, and instructed McLaren Hart to proceed with the removal operation.

228

Other evidence indicates that Ross visited the site on two or three additional occasions; one of these meetings appears to have been attended by a representative from Senator Dill’s office, a representative of the state Department of Toxic Substance Control, and a representative of the City of Carson.

229

There is no evidence, however, that a community relations plan was prepared, that the public was given notice of the remediation action, that a public meeting was held, or that other opportunity for public comment was provided. Indeed, Dr. Amini admits that McLaren Hart did not pursue the “very cumbersome and elaborate procedure[s] prescribed in the N.C.P.” because it considered the response a removal action.

230

Dr. Amini knows of no effort to solicit public comment on the remedial action plan. And Carson Harbor’s owner, Goldstein, is not aware that anyone acting on Carson Harbor’s behalf held public meetings or published notice of the remedial action plan that had been selected.

While the evidence is sufficient to raise a triable issue of fact regarding the fact that Carson Harbor notified and interviewed local officials and other interested and/or affected parties, it does not demonstrate compliance with the remaining NCP public comment requirements, or even raise triable issues of fact in that regard. There is, as noted, no evidence that Carson Harbor developed a community relations plan, that the remediation plan was published or otherwise made available to the public, that any public meetings were held, or that public comment was solicited. The meetings among plaintiffs environmental consultants, Unocal, the RWQCB, and Senator Dills’ staff simply did not afford the general public “an ample opportunity for comment.” 55 Fed.Reg. 8798. See

City of Oakland, supra,

2000 WL 1130066 at * 5 (“After the discovery of the lead contamination, the only measures taken to ensure public participation with regard to the measures to be taken in connection with the rocky fill were a press release and

*1162

discussions of the matter at meetings of the Board of Port Commissioners that are open to the public. The Court concludes that these measures were not substantially compliant with the NCP. The press release ... was issued only one day before excavation began. Moreover, the release itself says only that there is a ‘potential’ of hazardous waste at the site, and that if such waste were to be found, the Port would ensure that it received approval from the appropriate regulatory agencies before conducting any excavation.... [I]t appears that the meetings that took place over the next few months dealt primarily with the approval of charges for work that had already been completed_ Moreover, the Port’s project manager ... knew of no meetings open to the public at which the options for dealing with the lead contaminated fill were discussed_No evidence has been submitted to show that the public was able to comment upon the options that were available and/or considered after the time that the lead contamination was discovered. Given the tenor of the press release, and the subject of the meetings held, the Court must conclude that the public did not participate in the selection of the response action”).

Carson Harbor argues that it substantially complied with the public comment provisions because the direct involvement of a public agency like the RWQCB is equivalent to involving members of the public at large. Some courts have held that participation by a public agency is sufficient to demonstrate compliance with the NCP public comment requirement. See

Bedford Affiliates v. Sills,

156 F.3d 416, 428 (2d Cir.1998) (“Sills urges that Bedford’s failure to provide any opportunity for public comment prior to initiating cleanup at the Site should preclude recovery of response costs.... The district court found the DEC has been actively involved in the cleanup of this Site since 1993 when Bedford negotiated its first consent order.... Such extensive involvement of a government agency charged with the protection of the public environmental interest is an effective substitute for public comment. Where a state agency responsible for overseeing remediation of hazardous wastes gives comprehensive input, and the private parties involved act pursuant to those instructions, the state participation may fulfill the public participation requirement”);

Norfolk Southern Railway Co. v. Gee Co.,

158 F.Supp.2d 878, 883 (N.D.Ill.2001) (“The Seventh Circuit has not yet decided the issue explicitly, but its

NutraSweet

decision suggests strongly that government agency involvement, similar to that of the IEPA in this case, can provide an adequate substitute for public notice and comment”);

231

Sherwin-Williams Co.

*1163

v. Artra Group, Inc.,

125 F.Supp.2d 739, 752 (D.Md.2001) (“At least one circuit has concluded that evidence of a state environmental agency’s involvement with approving cleanup plans and monitoring remediation progress was sufficient to satisfy the requirement of consistency with the NCP as a whole, and not merely with respect to the public participation requirements,” citing

NutraSweet, supra,

227 F.3d at 791 );

American Color & Chemical Corp. v. Tenneco Polymers, Inc.,

918 F.Supp. 945, 957 (D.S.C.1995) (“This court ... recognizes that governmental agencies charged with protection of the public interest may serve as substitutes for participation by individual members of the public, at least where the agency is actively involved in all aspects of the investigation, planning, and remediation of a release of a hazardous substance

General Elec. Co. v. Litton Business Systems, Inc.,

715 F.Supp. 949, 961 (W.D.Mo.1989) (“Public hearings are not mandated in the NCP when compliance with legally applicable or relevant and appropriate state requirements provides a substantially equivalent opportunity for public involvement.... It is clear to the Court that no public hearing was required due to the fact that GE was complying with legally applicable or relevant and appropriate state requirements that the waste be removed. Furthermore, if notice to the public is a requirement, the input of the Missouri Department of Natural Resources serves as a substitute for public comment”), aff'd. on other grounds, 920 F.2d 1415 (8th Cir.1990), cert. denied, 499 U.S. 937 , 111 S.Ct. 1390 , 113 L.Ed.2d 446 (1991). See also

Morrison Enterprises, supra,

302 F.3d at 1137-38 (holding, as a fact-specific matter, that plaintiff was entitled to a “rebuttable presumption” of compliance with the NCP because it undertook a cleanup pursuant to a consent order with a state environmental agency that was part of the EPA’s program of deferring the placement of properties on the national priorities list to afford an opportunity for state governments to effect remediation).

Other courts have held that the involvement of a public agency other than the EPA does not substitute for compliance with the public notice/comment requirements of the NCP. See

Public Service Co. of Colorado, supra,

175 F.3d at 1185

&

n. 13 (after noting that a private party’s consent decree with a state environmental agency “was silent on any requirement to inform the public about the Site and its cleanup,” the court stated that “[t]his absence cannot be filled by PSCO’s invoking the doctrine of

parens patriae,

equating the State’s involvement with substantial compliance with the NCP. Although the 1990 NCP suggests that ‘significant state involvement serves the identical purpose that the public notice provision seeks to effectuate,’

Bedford Affiliates v. Sills,

156 F.3d 416, 428 (2d Cir.1998), the facts before us do not permit us to equate CDH’s executing the Consent Order as the equivalent of active state involvement. In

Bed-ford,

the New York Department of Environmental Conservation, state officials were actively involved in the cleanup, ‘present to investigate the implementation of the preliminary site assessment and the interim remedial measure, and generally to oversee the progress of the cleanup’ ”);

County Line Investment Co., supra,

933 F.2d at 1512 (plaintiffs failure to provide an opportunity for public comment on a remedial action barred its recovery under CERCLA despite the fact that its cleanup plan was approved by the Oklahoma State Department of Health);

Waste Management, supra,

135 F.Supp.2d at 1102 (“While some courts have found that interaction with government agencies can substitute for public comment, the NCP is quite clear that its public participation standards are directed at participation by members of the general public and the

*1164

surrounding community, not government bodies. Notably, even where the government

itself

is conducting the clean-up, the NCP requires participation by the public” (citations omitted));

Sherwin-Williams, supra,

840 F.Supp. at 477 (“The regulations clearly contemplate participation by the general public ... Using state regulators as a substitute ... is contrary to the letter and the spirit of the regulations”). See also

Channel Master, supra,

748 F.Supp. at 392 (“The court notes that there is no statutory language in the CERCLA statute which supports such an argument”).

Certain of the courts that have held governmental agency involvement can satisfy the NCP’s public comment requirement appear to have relied on the fact that the agency’s process itself involved opportunities for public input and involvement. See

Estes v. Scotsman Group, Inc.,

16 F.Supp.2d 988, 991 (C.D.Ill.1998) (“Cases allowing public agency involvement to be substituted for public comment have only allowed such a substitution if the public is provided an ample opportunity for comment and there is substantial involvement throughout the cleanup by a state agency”);

Amcast Industrial Corp. v. Detrex Corp.,

779 F.Supp. 1519, 1537 (N.D.Ind.1991) (holding that the NCP public participation requirement was fulfilled because the Indiana Department of Environmental Management gave public notice and received public comments before issuing an NPDES permit for the cleanup, even if it did not hold a public hearing), rev’d. in part on other grounds, 2 F.3d 746 (7th Cir.1993);

Channel Master, supra,

748 F.Supp. at 390 (“In

General Electric,

for example, the cleanup site in question was discussed in at least three

public meetings

of the [the state environmental agency], of which

prior public notice

was given” (emphasis original)). Compare

Waste Management, supra,

135 F.Supp.2d at 1102 (“[Ejven assuming that government involvement could fulfill the public participation requirements in some circumstances, it would not be appropriate to do so here. The governmental involvement in this case was not unusually extensive; nor did it lead to comparable opportunities for public input-[W]hile some of the governmental interactions involved meetings open to the public ..., no one public meeting presented WMAC’s proposal as a whole or presented an opportunity for meaningful public input into WMAC’s consideration of remedial alternatives”);

Bethlehem Iron Works, Inc. v. Lewis Indus., Inc.,

No. CIV.A. 94-0752, 1996 WL 557592 , * 60 (E.D.Pa. Oct.l, 1996) (“... Plaintiffs presented no evidence as to whether comments on the NPDES Permit [issued by a state agency] were received and whether Plaintiffs or [the Department of Environmental Resources] responded to them. In addition, the Notice does not state that a public meeting on the NPDES Permit was scheduled and Plaintiffs presented no evidence that a public hearing regarding the NPDES Permit was held”).

232

*1165

Certain other courts adopting the rule appear to have focused on the degree of similarity between the environmental requirements being administered by the state agency and the requirements of the NCP. See

Public Service Co. of Colorado, supra,

175 F.3d at 1184 (rejecting defendant’s argument that a state-mandated cleanup should be deemed consistent with the NCP because of the state’s “intensive involvement and comprehensive oversight in the cleanup,” since “[t]he record establishes although [the agency] disapproved of some of the techniques [the plaintiff] was using to neutralize contaminated soils and required [it] to ship its contaminated substances to a different facility, [the agency] was never involved in assessing the Site, proposing alternative remedies, overseeing the remedy, or involving the surrounding community.... [The agency] was not [plaintiffs] alter ego in the cleanup. Rather, the record discloses [that it] was concerned with compliance with state requirements which do not fully mirror those of the NCP”);

Washington State Dep’t. of Transp., supra,

59 F.3d at 793 (concluding that a state agency’s cleanup was not consistent with the NCP because, although “an environmental cleanup could conceivably follow a standard procedure consistent with the NCP, even if the NCP is not actually referenced,” the agency showed a “high degree of inconsistency” with the NCP, in that it “failed to determine the nature or extent of the threat posed by the tar-like material,” its remedies failed to account for all hazardous substances and testing results, and it “failed to provide an opportunity for public review and comment of the alternative remedial measure it was considering”);

American Color & Chemical Corp., supra,

918 F.Supp. at 957 (“The court agrees ... that the public was provided with an opportunity for meaningful public comment concerning selection of a response action.... Additionally, the requirements of the ... Consent Orders were substantially equivalent to those found in the 1990 NCP”);

Greene v. Product Mfg. Corp.,

842 F.Supp. 1321, 1326 (D.Kan.1993) (“The court is persuaded that the provisions of the consent decree providing for a community relations program through the KDHE are sufficient to satisfy the requirements of the NCP”);

General Electric Co., supra,

715 F.Supp. at 952, 961 (holding that “if notice to the public [was] a requirement, the input of the Missouri Department of Natural Resources [“MDNR”] serve[d] as a substitute for public comment” because the consent decree between plaintiff and MDNR “required all remedial action for the site to be ‘consistent with the National Contingency Plan’” and “required MDNR approval of all remedial action”).

Still other courts have simply examined the level and extent of governmental involvement, without evaluating whether opportunities for public input were provided, or whether the state agency was administering an environmental law and regulations that paralleled the NCP. See

Bedford Affiliates, supra,

156 F.3d at 428 (concluding that “extensive” state agency involvement was an adequate substitute for public comment because state officials were actively involved in the cleanup, had been “periodically present to investigate the implementation of the preliminary site assessment and the interim remedial measure, and generally to oversee the progress of the cleanup,” and had given “comprehensive input” that the private parties had followed);

Norfolk Southern Railway Co., supra,

158 F.Supp.2d at 881-83 (find

*1166

ing that, although plaintiff conducted a “lackluster” community relations effort and did not follow the state agency’s recommendations respecting public relations, it complied with the NCP “because the [state agency] was involved in both the approval of Norfolk Southern’s remediation plans and the execution of the remediation itself, and then supplied the final stamp of approval by way of two separate No Further Remediation (NFR) Letters,” citing

Bedford Affiliates, supra,

156 F.3d 416 and

NutraSweet, supra,

227 F.3d 776 );

Estes, supra,

16 F.Supp.2d at 991 (“Cases allowing public agency involvement to be substituted for public comment have only allowed such a substitution if the public is provided an ample opportunity for comment and there is substantial involvement throughout the cleanup by a state agency”);

VME Americas, Inc. v. Hein-Werner Corp.,

946 F.Supp. 683, 692 (E.D.Wis. 1996) (“... some courts have found state regulatory involvement to be an effective substitute for public comment ... but only where the state agency ‘is actively involved in all aspects of the investigation, planning, and remediation of a release of a hazardous substance ...,’” quoting

American Color & Chemical, supra,

918 F.Supp. at 956-57 ).

233

Compare

City of Oakland, supra,

2000 WL 1130066 at * 5 (“... the notification of the regulatory authorities about the cleanup was not enough to obviate the need for public comment because the evidence presented does not show these agencies’ input to be ‘comprehensive’ ”).

*1167

The court agrees with the holding in

Bedford Affiliates

that extensive government involvement in a private cleanup effort can, under appropriate circumstances, fulfill the public participation requirement of the NCP. As the

Bedford Affiliates

court noted, the EPA has adopted a flexible approach to NCP compliance to ensure that the plan’s requirements do not present an insurmontable obstacle to private cleanup efforts.

Bedford Affiliates, supra,

156 F.3d at 428 . Moreover, the public comment provisions of the NCP are stated in precatory, rather than mandatory, language.

Id.

(“... the public comment provision functions as an important concern, but not an inflexible requirement. See [55 Fed.Reg. 8793] (explaining that [the] provisions set forth in §§ 300.700(c)(5)-(7) are provided as ‘guidance to private parties on those requirements that may be pertinent to a particular site.’) ... Even the plain language of the National Plan does not mandate public participation; it simply states that private parties ‘should’ seek public comment. See 40 C.F.R. § 300.700 (c)(6)”). Finally, the 1990 revisions to the NCP indicate that the public comment provisions were added because the EPA was “troubled by private cleanups lacking significant governmental involvement,” and thus “significant state involvement serves the identical purpose that the public notice provision seeks to effectuate.”

Id.

(“The EPA added the public notice provision because ‘[t]he public — both [potentially responsible persons] and concerned citizens — have a strong interest in participating in cleanup decisions that may affect them, and their involvement helps to ensure that these cleanups— which are performed without governmental supervision — are carried out in an environmentally sound manner. Thus, EPA has decided that providing public participation opportunities should be a condition for cost recovery under CERCLA,’ ” quoting 55 Fed.Reg. 8793).

The court also believes it is appropriate, however, to allow for such a substitution only when the record reveals “extensive” or “comprehensive” agency involvement in the cleanup, some evidence that the agency was applying standards that were identical to or consistent with the NCP, and some evidence that the agency’s procedures allowed for public comment or involvement. See

Public Service Co. of Colorado, supra,

175 F.3d at 1184 (rejecting plaintiffs argument that a state agency functioned as

parens patriae

and that its involvement satisfied the public comment requirement because “CDH was never involved in assessing the Site, proposing alternative remedies, overseeing the remedy, or involving the surrounding community,” and because “the record discloses CDH was concerned with compliance with state requirements which do not fully mirror those of the NCP”). See also

Union Pacific Railroad Co., supra,

215 F.3d at 839 (“extensive state involvement is not a

per se

substitute for substantial compliance with the public participation and comment requirements of the NCP”).

Such a rule is consistent with EPA regulations stating that response actions taken under non-EPA authority must be evaluated on a “case-by-case” basis. See 55 Fed. Reg. 8796 -97 (“[T]he decision to defer a site from listing on the NPL for attention by another authority does not represent a determination that the response action to be taken will presumptively be consistent with the NCP.... Each response action taken under another authority (e.g., RCRA) for which cost recovery is sought under section 107(a)(4)(B) must be justified on a case-by-case basis”). Cf.

Morrison Enterprises, supra,

302 F.3d at 1138 (“Given the specifics of the EPA pilot program in this case, we conclude that Morri

*1168

son was entitled to a rebuttable presumption of compliance with the NCP based on the fact that its action were undertaken pursuant to a consent order with the KDHE.... [L]anguage in the Cooperative Agreement and the EPA’s later correspondence with the KDHE ... specifically indicates that the EPA has determined that sites within the deferral program were being handled in a manner consistent with the NCP”).

It also makes practical sense. If

any

level of government involvement were sufficient to extinguish a party’s obligation to comply with the NCP public comment requirements, minimal contact with state officials would permit a party to avoid involving the public in the selection of the appropriate remedial action and in evaluating whether it had effectively addressed the environmental problem.

Similarly, if a state agency’s consideration of remedial alternatives is governed by a statute that does not contain provisions similar to the NCP, this undercuts any argument that its involvement should substitute for the public participation contemplated by the EPA. Cf.

Washington State Dep’t. of Transp.,

59 F.3d at 802-05 (although stating it was “questionable” whether a state agency complied with the NCP because it did not “refer to the NCP for guidance on how to handle the contaminants on the site,” its representative “was not even aware that the NCP existed,” and its project manager “had never implemented the NCP in a remedial action,” the court noted that “an environmental cleanup could conceivably follow a standard procedure consistent with the NCP, even if the NCP is not actually referenced”; it nonetheless concluded that the agency’s cleanup was not NCP-compliant because it “failed to assess accurately both the nature and the extent of the threat posed by the presence of PAHs in the soil, failed to evaluate alternatives in the matter prescribed in the NCP, and failed to provide opportunity for public comment”).

Finally, if a state agency does not itself solicit input from the public in some manner, it is difficult to see how its involvement in a cleanup can fulfill the purpose of the NCP’s community relations requirement. While one part of this purpose is to ensure that cleanups performed without government oversight are completed in an environmentally sound manner (see 55 Fed.Reg. 8795;

Bedford Affiliates, supra,

156 F.3d at 428 ), another is to ensure that those responsible for the cleanup receive citizens’ input regarding environmental conditions in the community. This citizen perspective is distinctly different from the regulatory view of the state agency that scrutinizes cleanups. See

Sherwin-Williams, supra,

840 F.Supp. at 477 (“The regulations clearly contemplate participation by the general public in decisions that could affect the environmental conditions of their neighborhood.... [E]ven where a cleanup is conducted by the EPA or a state agency, a public comment period is required”).

Accordingly, before it will fulfill the community relations requirement of the NCP, a state agency’s participation in a cleanup must be extensive or comprehensive, must involve the application of standards identical to or consistent with the NCP, and must afford the public some opportunity for comment or involvement. This standard was not met in the present case.

First, it does not appear that RWQCB’s participation in Carson Harbor’s cleanup was as extensive or comprehensive as the involvement of the state agencies in

Bed-ford Affiliates

and

Norfolk Southern Railway Co.

In both cases, the state agency was involved in the execution or implementation of the remediation plan. Here, there is no evidence that RWQCB partici

*1169

pated in, oversaw, or monitored the remediation work in the same manner as the agencies involved in those cases.

In

Bedford Affiliates ,

the plaintiff entered into a consent decree with the New York State Department of Environmental Conservation (“DEC”), pursuant to which it agreed to submit and implement a Preliminary Site Assessment work plan (“PSA”).

Bedford Affiliates, supra,

156 F.3d at 421 . The DEC approved the PSA, and after reviewing the assessment results, entered into a second consent decree with plaintiff that obligated plaintiff to submit and implement an interim remedial measure work plan (“IRM”).

Id.

The DEC approved the IRM, which proposed the installation of a soil vapor extraction system to treat the contaminated soil and eliminate the source of further groundwater contamination. Once the system was installed, DEC oversaw its operation.

Id.

at 422 .

Regarding the level of DEC’S involvement, the court stated:

“The district court found the DEC has been actively involved in the cleanup of this Site since 1993 when Bedford negotiated its first consent order. DEC officials periodically have been present to investigate the implementation of the preliminary site assessment and the interim remedial measure, and generally to oversee the progress of the cleanup and the soil vapor evacuation system. Such extensive involvement of a government agency charged with the protection of the public environmental interest is an effective substitute for public comment. Where a state agency responsible for overseeing remediation of hazardous wastes gives comprehensive input, and the private parties involved act pursuant to those instructions, the state participation may fulfill the public participation requirement.”

Id.

at 428 .

See also

Norfolk Southern Railway Co., supra,

158 F.Supp.2d at 882 (“... the court concluded in its June 25 Order that Norfolk Southern substantially complied with the NCP because the IEPA was involved in both the approval of Norfolk Southern’s remediation plans

and the execution of the remediation itself,

and then supplied its final stamp of approval by way of two separate No Further Remediation (NFR) Letters” (emphasis added)).

Here, the undisputed evidence shows that Carson Harbor submitted a remedial action plan to the RWQCB. The agency reviewed.the plan, requested certain modifications to it, and thereafter approved it.

234

While there is a conflict in the evidence as to whether the RWQCB ultimately ordered Carson Harbor to proceed with removal of the tar-like and slag materials, the court must assume, for purposes of defendants’ summary judgment motions, that, after reviewing and approving the remedial action plan, the RWQCB required Carson Harbor to proceed with remediation. Once Carson Harbor’s remediation efforts were complete, the RWQCB conducted independent inspection and testing at the property,

235

and issued a letter stating that “removal [was] complete to the extent required by th[e] Board,” and that “no further action [was] required at this site.”

236

There is no evidence, however, that the RWQCB assessed the site and evaluated alternate remedial responses, that it participated in implementing the remediation work, or that it oversaw or

*1170

monitored that work in any way.

237

It was thus not as active a participant as the state agencies involved in

Bedford Affiliates

and

Norfolk Southern Railway Co.

Plaintiff asserts that the RWQCB did not need to be as involved as the agency in

Bedford Affiliates

because there was only one effective remedial alternative available, and that alternative did not require ongoing monitoring of the remediation in the manner that the soil vapor extraction system employed in

Bedford Affiliates

did. The court acknowledges the force of this argument, and believes it is appropriate to evaluate the level of agency involvement in light of the nature of the contamination and the available remedial alternatives. Even if it concluded, however, based on these factors, that the RWQCB’s involvement was “extensive,” the court would still conclude that the agency’s involvement did not fulfill the public participation requirement of the NCP.

First, it is not clear on the present record what state regulations the RWQCB applied in evaluating Carson Harbor’s remediation proposals, or whether those regulations were consistent with the NCP.

238

Consequently, the court cannot con-

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elude that the environmental requirements that were being administered by the RWQCB were similar to the requirements imposed by the NCP. See

Public Service Co. of Colorado, supra,

175 F.3d at 1184 ;

Washington State Dep’t. of Transp., supra,

59 F.3d at 793.

Even assuming the standards the RWQCB utilized were consistent with the NCP, there is no evidence that the agency in any manner solicited or provided opportunities for public comment. Specifically, there is no evidence that the RWQCB sought public comment concerning Carson Harbor’s remediation proposal in any of the ways envisioned by the NCP before it approved the plan, i.e., by publishing an analysis of the remediation plan in a major local newspaper, offering a public comment period following publication of the remediation plan, or holding a public meeting.

239

Indeed, the record is devoid of any evidence that the public was notified of, or invited to comment on, the proposed remediation plan prior to its implementation.

The RWQCB’s failure to solicit input from the public before approving Carson Harbor’s plan, to offer the public an opportunity to review and critique the plan, and

*1172

to afford a mechanism for the public to suggest alternatives is inconsistent with the NCP. The NCP imposes an obligation not just on private parties, but on governmental agencies involved in cleanups to solicit input from members of the general public. The inclusion of this provision demonstrates that the public participation requirement is designed not simply to substitute for lack of government oversight, but to ensure an adequate opportunity for affected individuals to be heard before remediation efforts are undertaken. Because the RWQCB did not solicit

any

public input, its participation was not an effective substitute for the community relations activities that the NCP contemplated Carson Harbor would undertake in this case. See

Waste Management, supra,

185 F.Supp.2d at 1103 (“The governmental involvement in this case was not unusually extensive; nor did it lead to comparable opportunities for public input”).

Accordingly, the court concludes that the RWQCB’s involvement in the remediation effort did not satisfy the NCP’s public participation requirement. As the evidence on this issue is undisputed, or has been construed in the light most favorable to the plaintiff, the court concludes there are no triable issues of fact regarding Carson Harbor’s failure to satisfy the public participation requirement of the NCP.

240

Failure to provide a meaningful opportunity for public participation is “more than a technical or

de minimis

deviation from the NCP,” and has been found to be a sufficient basis upon which to find that a plaintiffs response costs are not recoverable under CERCLA. See

id.

at 1103;

City of Oakland, supra,

2000 WL 1130066 at * 5 (“Failure to comply with the public participation requirement alone is enough to conclude that the Port did not substantially comply with the NCP. Therefore, the Court does not reach the issue of whether the Port fulfilled the requirements of an RI/FS”).

(5) Compliance With RI/FS Requirement

The remedial investigation and feasibility study (“RI/FS”) requirement of the NCP (see 40 C.F.R. §§ 300.5 , 300.430) “is intended to determine the extent of contamination and possible remedies.” See

Franklin County Convention Facilities Authority v. American Premier Underwriters, Inc.,

240 F.3d 534, 544 (6th Cir.2001). Remedial investigation involves data collection and site characterization, while the feasibility study uses the data

*1173

collected to define the objectives of the response action and develop remedial alternatives.

Id.

(citing 40 C.F.R. § 300.5 ).

Remedial investigation requires assessment of the threats to human health or the environment taking into consideration the physical characteristics of the site and the hazardous waste, the extent to which the source of the waste can be identified, potential pathways for exposure to the waste, and other factors that may be relevant to the analysis of remedial measures. See 40 C.F.R. § 300 .4S0(d)(l)-(4).

A feasibility study is then prepared to ensure that potential remedial alternatives are “developed and evaluated,” and “an appropriate remedy [can be] selected.” 40 C.F.R. § 300.430 (e)(1). In developing remedial alternatives, both the objective of the remedial action and potential methods for achieving that objective must be considered. See 40 C.F.R. § 300.430 (e)(2)-(6). Alternatives must be assessed for effectiveness, implementability, and cost. See 40 C.F.R. § 300.430 (e)(7). The feasibility study must include “a detailed analysis ... on the limited number of alternatives that represent viable approaches to remedial action after evaluation in the screening stage.” 40 C.F.R. § 300.430 (e)(9).

Dr. Amini testified he did not believe the project required a “full blown feasibility study, risk assessment, public involvement, [or] many other [NCP] requirements.”

241

While he apparently participated in preparing Carson Harbor’s remedial action plan, Amini did not know of any reports that documented Carson Harbor’s consideration of remediation alternatives.

242

He concedes he suggested that a health risk assessment be conducted, but states that plaintiffs attorney chose not to authorize such an assessment.

243

Undisputed evidence in the record indicates that removal of the tar-like and slag materials was an appropriate remedial measure. Dr. Amini believed there was sufficient lead inherent in the tar to require its removal as a hazardous substance,

244

and McLaren Hart proposed removal of the material as the appropriate response in the remedial action plan it submitted to the RWQCB. The remedial action plan discussed the history of the site, and outlined the results of subsurface soil investigations performed by McLaren Hart and Park Environmental. It also addressed the contaminant levels present at the property and compared them to the STLC and TTLC levels deemed toxic in title 22, section 66261.24 of the California Code of Regulations. The plan then recommended cleanup parameters or criteria, i.e., the concentration levels to which the contaminants should be reduced, and identified a single remedial alternative: removal of the tar-like and slag materials. Finally, the report detailed the procedures that would be followed during removal, including preparation of a health and safety plan, site preparation, excavation and verification sampling.

245

The RWQCB approved the removal plan with certain modifications.

While Carson Harbor asserts it raised with the RWQCB the option of leaving the tar-like and slag materials in place, there is no evidence that the agency considered this or any other remediation alternative before approving the plan. Similarly, while there is evidence that concerned parties (including the RWQCB and Unocal)

*1174

discussed remediation after the plan was prepared, and that the RWQCB ultimately directed Carson Harbor to remove the tar-like and slag materials, there is no evidence that specific remediation alternatives were evaluated at these sessions.

As noted, a remedial investigation requires assessment of the threat to human health or the environment posed by the contamination. The physical characteristics of the site, the contaminants, their source, and pathways for exposure must be assessed. Here, it is undisputed that Carson Harbor did not assess the threat the contamination posed to health or the environment, as it declined to follow the recommendation of its consultant that such a study be undertaken. Carson Harbor contends it satisfied this requirement nonetheless because it met the cleanup levels prescribed by the RWQCB, and these were designed to protect public health and the environment.

246

As noted earlier, in

NutraSweet,

the Seventh Circuit held that a state environmental agency’s approval of a remedial plan and monitoring of a remediation effort was sufficient to demonstrate compliance with the NCP. See

NutraSweet, supra,

227 F.3d at 791 (“the district court did not clearly err in concluding that NutraSweet had satisfied the NCP. The Illinois EPA approved NutraSweet’s clean-up plan, and the agency monitored the progress of the remediation. NutraSweet remediated its property until the Illinois EPA advised it that it could stop because NutraSweet’s efforts had succeeded to the maximum extent possible. In light of this evidence, we are satisfied that NutraSweet met this requirement for a CERCLA recovery”). The Tenth Circuit has held, by contrast, that whether compliance with state agency directives can be deemed compliance with the NCP is a case-specific question that turns on whether, factually, “compliance with the state orders, and acceptance of state oversight ... establishes] compliance with the NCP.”

Morrison Enterprises, supra,

302 F.3d at 1138 . The court concludes that the Tenth Circuit’s approach is the appropriate one.

There is no specific evidence in the record that the RWQCB assessed the threat the contaminants posed to health and the environment in reviewing and approving Carson Harbor’s proposed remedial action. Nor is there any evidence of the standards it employed if it did so. Because there are disputed issues of fact in this regard, however,

247

the court will presume for purposes of this proceeding that the RWQCB did engage in such an assessment, and that its analysis was an adequate substitute for Carson Harbor’s failure to do so. Carson Harbor appears substantially to have complied with the remaining remedial investigation requirements, as both Park Envi

*1175

ronmental and McLaren Hart analyzed the physical characteristics of the site, contaminant levels at the property, and to some extent, their source.

The more troublesome question is whether the McLaren Hart remedial action plan constitutes an acceptable feasibility study. The essence of a such a study is the development and evaluation of potential remediation alternatives whose relative effectiveness, implementability, and cost can be compared before a remedial action is selected. The EPA requires that the feasibility study include “a detailed analysis ... on the limited number of alternatives that represent viable approaches to remedial action.... ” 40 C.F.R. § 300.430 (e)(9). There is no evidence in the record that either Carson Harbor or the RWQCB considered the effectiveness, implementability or cost of remedial alternatives before deciding to proceed with removal of the tar and slag. In fact, the only evidence concerning Carson Harbor’s consideration of alternatives is Dr. Amini’s conclusory statement that McLaren Hart thought about various remedial alternatives.

248

Carson Harbor contends that the remedial action plan constitutes an adequate feasibility study, because only “feasible” options need be studied, and there was only one such alternative available in this case. Where no other feasible options exist, Carson Harbor asserts, there is no need to address alternative approaches in the feasibility study. This argument appears to have been squarely rejected by the Ninth Circuit in

Washington State Dep’t. of Transp.

See 59 F.3d at 804-05 (after noting that the NCP requires an initial screening of alternatives, examining cost, implementability, and effectiveness, to narrow the list of options, and then detailed analysis of the remaining alternatives, using similar criteria, the court concluded that the agency had not satisfied the RI/FS requirement of the NCP, stating: ‘WSDOT failed to satisfy these requirements. In the first investigation, ... the interagency team informally considered several alternatives.... The record does not indicate that WSDOT subjected these alternatives to the kind of thorough analysis that the NCP requires. Hart Crowser’s report to WSDOT does not contain a discussion of any of these alternatives. WSDOE’s summary analysis states that disposal of the tar at Arlington is the only ‘feasible option’ and does not indicate that other alternatives were even considered”).

The same is true of McLaren Hart’s remedial action plan in this case. Carson Harbor asserts that a no-action option was informally discussed with the RWQCB. There is no mention of such an option in the plan, however, and no indication why it was rejected in favor of removal. See

Sealy Connecticut, Inc. v. Litton Industries, Inc.,

93 F.Supp.2d 177, 184 (D.Conn.2000) (“While Sealy’s failure to produce a formal document identified as a feasibility study might be overlooked if there were evidence that Sealy otherwise identified and considered other remedial options under the criteria established by the NCP, such is not the case.... [WJhile the April 1996 RAP identifies two remedial alternatives and at least superficially addresses some of the criteria set forth in the NCP, it does not reflect how or why the ‘no action’ alternative was ultimately rejected and the Winchester Building was demolished”). Similarly, there is no mention of any other alternative, or even cursory discussion as to why such options were not feasible. Finally, there is no assessment of the removal option in terms of effectiveness, cost, and ease of implementation. The remedial action

*1176

plan, therefore, does not demonstrate that Carson Harbor considered remedial alternatives, or subjected them to the kind of thorough analysis that is required by the NCP. Indeed, it does not even demonstrate that Carson Harbor evaluated its chosen option — removal—in terms of the criteria set forth in the NCP. See

Raytheon Constructors, supra,

2000 WL 1635482 at * 26-27 (“ASARCO contends that the Initial Work Plan and subsequent documents are functionally equivalent to an RI/FS.... The Initial Work Plan does not evaluate alternative remedies ‘at length’ based upon these criteria.... [T]here are only two short paragraphs comparing the costs in very general terms.... In addition, the Initial Work Plan devotes just over one page of double-spaced text to the comparison and selection of alternatives, which is hardly the type of detailed evaluation which the NCP contemplates.... Finally, after the alternative screening process, the Initial Work plan did not evaluate the alternatives and select a remedy based upon the nine evaluative criteria set forth in section 40 C.F.R. § 300.430 (e)(9)(iii)”);

Union Pacific Railroad Co. v. Reilly Industries, Inc.,

981 F.Supp. 1229, 1238 (D.Minn.1997) (“Although Union Pacific submits notes and internal memoranda in support of its position that it satisfied the RI/FS requirement, the notes and memoranda are not a substitute for the detailed provisions of the federal regulations”), vacated in part on other grounds, 1998 WL 1768404 (D.Minn. Jan.12, 1998), aff'd., 215 F.3d 830 (8th Cir.2000);

Sherwin-Williams, supra,

840 F.Supp. at 478 (“The 1989 treatability proposal and the 1990 work plans submitted to the MDNR by the City do not substantially comply with the NCP requirements. The City has not demonstrated that it developed, in any detail, alternatives to the methods it chose. The work plan merely established

the

method to be used. Simple variations or adjustments to the same remedial procedure, as reflected in the amendments to the work plan, do not amount to alternatives”).

249

There is similarly no evidence that the RWQCB conducted a study of alternatives, or evaluated possible options in terms of effectiveness, cost or ease of implementation. Accordingly, its involvement cannot cure the deficiencies in the remedial action plan that the court has noted, and a finding that Carson Harbor did not substantially comply with the RI/FS requirement of the NCP is warranted.

*1177

(6) Conclusion Regarding Compliance With The National Contingency Plan

To determine if it is compliant with the NCP, a private party’s response action must be “evaluated as a whole.” See 40 C.F.R. § 300.700 (c)(3)(i). See also

Washington State Dep’t. of Transport., supra,

59 F.3d at 805 (“looking at the situation as a whole,” and concluding there had been a failure to comply with the NCP). Here, based on undisputed evidence in the record, the court has concluded that Carson Harbor failed to satisfy two of the primary requirements of the NCP — ensuring public participation and preparing an adequate feasibility study. Particularly given evidence indicating Carson Harbor affirmatively elected to forego compliance with the NCP, the fact that the RWQCB was involved in the cleanup does not cure these failures. Moreover, given the importance of these elements of the plan, the court concludes that Carson Harbor’s action “as a whole” did not substantially comply with the NCP.

Because Carson Harbor has failed to raise a triable issue of fact regarding its substantial compliance with the public comment and RI/FS requirements of the NCP, Unocal’s motion for summary judgment must be granted.

250

Carson also sought summary judgment on the basis that Carson Harbor had failed to comply

*1178

with the NCP, and Compton joined in Unocal’s motion. The response costs Carson Harbor seeks to recover from each of these defendants are identical, and involve identical remedial actions. Accordingly, in addition to the grounds discussed in section B.3.,

infra,

Carson Harbor’s failure to comply with the NCP provides an alternate basis for entering summary judgment in favor of Carson and Compton as well.

b. Whether Plaintiff Is A Potentially Responsible Party Limited To Seeking Contribution Costs Under § 9613(f)

Like most circuit courts that have considered the question, the Ninth Circuit has held that a potentially responsible party (“PRP”) may not seek indemnification for cleanup costs under § 9607(a). Rather, “[b]ecause all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily, is for contribution. A PRP’s contribution liability will correspond to that party’s equitable share of the total liability and will not be joint and several.”

Pinal Creek Group v. Newmont Mining Corp.,

118 F.3d 1298, 1301 (9th Cir.1997). See also

Fireman’s Fund Ins. Co. v. City of Lodi,

302 F.3d 928, 947 (9th Cir.2002) (same);

Carson Harbor Village, supra,

270 F.3d at 871 (“ ‘A PRP’s contribution liability will correspond to that party’s equitable share of the total liability and will not be joint and several’ ”).

251

As the current owner .of the property, Carson Harbor is a presumptive PRP. 42 U.S.C. § 9607 (a)(1);

Kaufman & Broad-South Bay v. Unisys Corp.,

868 F.Supp. 1212, 1216 (N.D.Cal.1994).

There is an exception to this general rule, however, where the PRP seeking to recover cleanup costs is an “innocent landowner.” See

Bedford Affiliates, supra,

156 F.3d at 425 (“... we hold that a potentially responsible person under § 107(a) that is not entitled to any of the defenses enumerated under § 107(b) ... cannot maintain a § 107(a) action against another potentially responsible person”);

New Castle County v. Halliburton NUS Corp.,

111 F.3d 1116, 1124 (3d Cir.1997) (“... a potentially responsible person under section 107(a), who is not entitled to any of the defenses enumerated under section 107(b), may not bring a section 107 action against another potentially responsible person”);

Keystone Coke Co. v. Pasquale,

No. CIV. A. 97-6074, 1999 WL 126917 , * 2 (E.D.Pa. Mar.9, 1999) (holding that a party who cannot satisfy the requirements of the “innocent landowner” defense set forth in § 9607(b) cannot maintain a § 9607(a) claim against another PRP even if “they are ... ‘ “innocent” in the common sense meaning of that word’ ”);

Boyce v. Bumb,

944 F.Supp. 807, 812 (N.D.Cal.1996) (“Plaintiffs may maintain a § 9607(a) claim for full cost recovery to the extent that they can prove themselves to be ‘innocent landowners’ within the meaning of § 9601(35) and § 9607(b)”);

M & M Realty Co. v. Eberton Terminal Corp.,

977 F.Supp. 683, 686 (M.D.Pa.1997) (“We conclude that, under the circum

*1179

stances alleged in this case, if M & M can establish that it is an innocent landowner under Section 107(b)(3), it will be entitled to bring a cost recovery action”);

Kaufman & Broad-South Bay v. Unisys Corp.,

868 F.Supp. 1212, 1216 (N.D.Cal.1994) (“Another example [of a private party that can sue under § 9607(a) ] is that of a PRP who can successfully assert one of the affirmative defenses enumerated in § 9607(b)”).

To prove that it is an innocent landowner under § 9607(b)(3), a party must demonstrate (1) that another party was the “sole cause” of the release of hazardous substances and the damages caused thereby; (2) that the other, responsible party did not cause the release in connection with a contractual, employment, or agency relationship with the defendant;

252

and (3) that the defendant exercised due care with respect to the hazardous substance, and took reasonable precautions against the foreseeable acts of the responsible party and the foreseeable consequences of those acts. See 42 U.S.C. § 9607 (b)(3);

Westfarm Associates Ltd. Partnership v. Washington Suburban Sanitary Comm’n.,

66 F.3d 669 , 682 (4th Cir.1995). See also

Reardon v. United States,

947 F.2d 1509, 1513 (1st Cir.1991) (“To decide, for example, the Reardons’ claim that they are innocent landowners, a court must determine whether the contamination pre-dated their ownership; whether they had any knowledge or reason to know of the contamination; whether they had exercised due care with respect to the hazardous substances; and whether they took precautions to prevent releases by foreseeable acts of third parties”).

Unocal asserts that because Carson Harbor is a PRP, it cannot seek to impose joint and several liability on defendants for the response costs it incurred, but is limited to recovering from each a

pro rata

share of costs under § 9613(f). Plaintiff respónds that it is an “innocent landowner,” or that, at a minimum, questions of fact regarding its status as such preclude the entry of summary judgment on this basis.

Any argument that Carson Harbor is not entitled to innocent landowner status because of its contractual relationship with the Partnership Defendants is barred by the Ninth Circuit’s holding in

Carson Harbor Village

that the Partnership Defendants are not PRPs because there was no disposal of contaminants at the property during their ownership of it. See

Carson Harbor Village, supra,

270 F.3d at 874, 887 . Because the Partnership Defendants are not PRPs, it cannot be said that the release of hazardous materials was caused by a party with whom Carson Harbor had a contractual relationship.

Beyond this, there is either no evidence in the present record or triable issues of fact regarding the elements of Carson Ha-bor’s claimed innocent landowner status, i.e., whether a party that was not an employee or agent of Carson Harbor was the

*1180

sole cause of'the release of hazardous substances, and whether Carson Harbor exercised due care regarding the contaminants, and took precautions against the foreseeable acts of the responsible party and their reasonably foreseeable consequences. First, there is no specific evidence in the summary judgment record as to who caused the release of contaminants at the property. Second, while there is evidence that Carson Harbor acted to remediate the contamination, there is no specific evidence as to whether Carson Harbor’s activities at the site prior to remediation exacerbated the contamination in any way.

253

See

Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co.,

14 F.3d 321, 325 (7th Cir.1994) (denying a property owner innocent landowner status because it did not take adequate steps to remove contaminants from the site or to reduce their threat after it purchased the site);

Shapiro v. Alexanderson,

741 F.Supp. 472, 478 (S.D.N.Y.1990) (§ 9607(b)(3) could not invoked by owners who concededly did not respond to contamination problem for five years after they learned of it);

Washington v. Time Oil Co.,

687 F.Supp. 529, 533 (W.D.Wash.1988) (“... Time Oil fails to carry its burden of bringing out specific facts to show that some third party was solely responsible for the release”). Accordingly, the matter cannot be resolved on the present record. If Unocal were not entitled to summary judgment because of Carson Harbor’s failure to comply with the NCP, therefore, its motion for summary judgment challenging plaintiffs status as an innocent landowner would have to be denied.

254

c. Mootness

Unocal next asserts that Carson Harbor’s action is moot because it has fully recovered its response costs as contemplated in § 9607(a).

(1) Article III Confers Jurisdiction To Adjudicate Only Cases Or Controversies

Under Article III, section 2 of the United States Constitution, federal courts have

*1181

jurisdiction to adjudicate only actual “Cases” or “Controversies.” U.S. Const., ART. Ill, § 2, cl. 1. “ ‘[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ ”

Seven Words LLC v. Network Solutions,

260 F.3d 1089, 1095 (9th Cir.2001) (quoting

Arizonans for Official English v. Arizona,

520 U.S. 43, 67 , 117 S.Ct. 1055 , 137 L.Ed.2d 170 (1997)). See also

Cook Inlet Treaty Tribes v. Shalala,

166 F.3d 986, 989 (9th Cir.1999) (“The twin pillars of standing and ‘case or controversy’ go to the heart of Article III jurisdiction. The corollary to these principles is that federal courts have no jurisdiction to hear a case that is moot, that is, where no actual or live controversy exists”);

Rosetti v. Shalala,

12 F.3d 1216, 1223 (3rd Cir.1993) (“Article III does not permit federal courts to decide moot cases”).

(2) Whether Plaintiff Fully Recovered Its Costs Through The 1997 Rent Increase

CERCLA provides that “[a]ny person who receives compensation for removal costs or damages or claims pursuant to any other Federal or State law shall be precluded from receiving compensation for the same removal costs or damages or claims as provided in this chapter.” 42 U.S.C. § 9614 (b). See also

Stanton Road Associates v. Lohrey Enterprises,

984 F.2d 1015, 1021-22 (9th Cir.1993) (“CERCLA precludes a plaintiff from recovering cost of repair damages under both CERCLA and state law”). It provides more generally that “[n]othing in this chapter shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.” 42 U.S.C. § 9652 (d).

Unocal asserts that Carson Harbor has received approximately $1.7 million in increased rental income since the Carson Mobilehome Park Rental Review Board (“Rental Board”) approved its rent increase application in January 1997. Unocal argues that this income has more than compensated Carson Harbor for its alleged damages of $530,263. The undisputed evidence shows, however, that the Rental Board’s decision was not designed solely to compensate Carson Harbor for its expenditures in remediating the property. Rather, the board compared plaintiff’s annual income and expenses, including the costs it incurred in the ordinary course of business, the cost of remediating the contamination,

255

and the cost of paying disputed property tax assessments. The evidence does not indicate what portion of the rent increase the board approved was attributable to each of these categories of expense.

The fact that the Rental Board granted a rent increase based in part on plaintiffs remediation expenses does not mean that the increased rent is a state law award of response costs. The rent increase was designed to “increase the Park’s income to offset the increase in expenses and allow the Park to maintain a profit level similar to its gross profit level prior to the large increase in operating expenses which occurred since the hearing on the Park’s 1994 rent increase application.”

256

Although the amount of the rent increase might have been reduced or its authorization might have been delayed had Carson Harbor not incurred remediation expenses, it did not, and could not, result in a wind

*1182

fall because the rent levels set in 1997 simply set a higher bar for the granting of future rent increases.

257

The fact that the rent increase was not designed to compensate for the incurring of response costs is further evidenced by the Rental Board’s statement that any recovery by Carson Harbor in this suit had to be reflected as income in its next rent increase application.

258

Because the 1997 rent increase did not constitute “compensation for removal costs ... pursuant to ... State law,” Carson Harbor is not precluded from seeking recovery under CERCLA.

259

Compare

Price v. United States Navy,

818 F.Supp. 1326, 1332-33 (S.D.Cal.1992) (“Here, plaintiffs received a $25,000.00 reimbursement from the State of California for the cleanup and associated costs. In addition, plaintiffs received a $30,000.00 settlement for the private cleanup and associated costs. The Court finds that these payments were made pursuant to state and/or federal law. Thus, a setoff and credit for these payments from other sources reduces the total amount of damages to which plaintiffs are entitled”), aff'd. in part, rev’d. in part on other grounds, 39 F.3d 1011 (9th Cir.1994). Unocal’s motion for summary judgment on the basis that plaintiff has already received a full remedy and its action is moot is therefore denied.

260

3. CERCLA Claims Against The Government Defendants

a. Release Of A Hazardous Substance

CERCLA defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.... ” 42 U.S.C. § 9601 (22). Courts have construed this definition broadly. See, e.g.,

Amoco Oil Co. v. Borden, Inc.,

889 F.2d 664, 669 (5th Cir.1989) (“the definition of release should be construed broadly”);

Dedham Water Co. v. Cumberland Farms Dairy, Inc.,

889 F.2d 1146, 1152 (1st Cir.1989) (“The courts have construed CERCLA’s definition of ‘release’ broadly”);

State of New York v. Shore Realty Corp.,

759 F.2d 1032, 1045 (2d Cir.1985) (holding that leaking tanks and pipelines, continued leaching and seepage from earlier spills, and leaking drums were all releases);

City of Tulsa v. Tyson Foods, Inc.,

258 F.Supp.2d 1263, 1287 (N.D.Okla.2003) (“To effect CERCLA’s goals of environmental protection and remediation, the definition of ‘release’ has been broadly construed by courts”);

United States v. Metate Asbestos Corp.,

584 F.Supp. 1143, 1149 (D.Ariz.1984) (finding

*1183

there was a “release” when asbestos fibers were carried by the wind). See also

O’Connor v. Boeing North American, Inc.,

311 F.3d 1139 , 1149 (9th Cir.2002) (noting that § 9601(22) defines release broadly);

Carson Harbor Village, supra,

270 F.3d at 878 (“[W]e conclude that ‘release’ is broader than ‘disposal,’ because the definition of ‘release’ includes ‘disposing’ (also, it includes ‘passive’ terms such as ‘leaching’ and ‘escaping’ which are not included in the definition of ‘disposal’)”).

261

(1) “Federally Permitted Release” Exception

CERCLA provides that the recovery of response costs resulting from “federally permitted releases” shall be “pursuant to existing law in lieu of this section.” 42 U.S.C. § 9607 (j). See

Westfarm Associates Limited Partnership v. International Fabricare Institute,

Civ. No. HM-92-9, 1993 WL 662329 , * 3 (D.Md. July 8, 1993) (“Accordingly, Congress excepted from the strict liability scheme of CERCLA certain releases that are ‘federally permitted,’ and plaintiffs who seek response costs or damages in connection with such releases must assert their claims under some other provision of law, including common law”), aff'd., 66 F.3d 669 (4th Cir.1995), cert. denied, 517 U.S. 1103 , 116 S.Ct. 1318 , 134 L.Ed.2d 471 (1996);

Lincoln Properties, Ltd. v. Higgins,

CIV. No. S-91760DFL/GGH, 1993 WL 217429 , * 21 (E.D.Cal. Jan.21, 1993) (“‘Federally permitted releases’ ... are not considered hazardous and are therefore not subject to the provisions of CERCLA”).

Federally permitted releases include “discharges in compliance with a permit under section 1342 of Title 33[, the Clean Water Act].” 42 U.S.C. § 9601 (10)(A). Under the Clean Water Act, certain pollutant discharges are illegal unless they are in compliance with an NPDES permit. See 33 U.S.C. §§ 1311 (a), 1342. An NPDES permit is presently required for stormwater discharges. No permit was required, however, prior to October 1, 1994. See 33 U.S.C. § 1342 (p).

There is no dispute that the County of Los Angeles was a permittee, and the cities of Carson and Compton co-permittees, under NPDES permits issued in 1990 and 1996. There is also no dispute that the Government Defendants were in compliance with the permits at all relevant times.

262

The court finds, therefore, as a matter of law, that the Government Defendants’ stormwater discharges from and after 1990 do not give rise to CERCLA liability.

(2) Whether Pre-Permit “Releases” Support Plaintiffs CERCLA Claim

(i) Constraints Imposed By Law Of The Case

Where a defendant establishes that certain releases were “federally permitted,” a plaintiff may nonetheless recover if it shows that “non-federally permitted releases contributed to the natural injury.”

United States v. Iron Mountain Mines, Inc.,

812 F.Supp. 1528, 1540 (E.D.Cal.1992) (citing

In re Acushnet River & New Bedford Harbor,

722 F.Supp. 893 , 897

*1184

(D.Mass.1989)). Applying this standard, the

Iron Mountain

court concluded that “response costs [could] be recovered for any releases that (1) were not expressly permitted, (2) exceeded the limitations of the permit, or (3) occurred at a time when there was no permit.”

Iron Mountain, supra,

812 F.Supp. at 1541 . See also

Idaho v. Bunker Hill,

635 F.Supp. 665, 673-74 (D.Idaho 1986) (“The court finds that to the extent damage was caused by releases which were not expressly permitted in the various permits, which exceeded the limitations established by the permits or which occurred during a time period when there were no permits, then the State may seek recovery for those damages under the CERCLA statute”).

The Ninth Circuit held that Judge Wardlaw properly granted the Government Defendants’ motion for summary judgment on the state law nuisance claim because “[the NPDES] permits authorized the discharge of stormwater containing pollutants, and there is no evidence that there was any lead-contaminated stormwa-ter runoff to the property prior to 1994 or a violation of the permits.”

Carson Harbor Village, supra,

270 F.3d at 888 . As this statement clearly indicates, Carson Harbor failed .to adduce evidence that the Government Defendants violated the NPDES permits, and also failed to adduce evidence that stormwater runoff brought hazardous materials onto the property pri- or to the date the first NPDES permit issued. Carson Harbor’s opening brief in the circuit court recognized the importance of this dual holding, arguing that summary judgment on the nuisance claim was improper because: (1) “[e]ven finding, as the District Court did, that the Government Entities are in compliance with both Permits, ... no permit authorizing the discharge of polluted stormwater existed [prior to 1990]” and (2) “[l]ead has been released onto the Property since-at least the late 1940s or early 1950s.”

263

Rejecting Carson Harbor’s argument, the Ninth Circuit upheld Judge Wardlaw’s finding on the issue, holding “there was no evidence” that there was lead in the stormwater prior to 1994. This holding is now the law of the case, and will not be reconsidered by this court. See

Walker, supra,

158 F.3d at 1185, n. 13 (law of the case applies to factual findings as well as legal conclusions);

Robinson, supra,

690 F.2d at 872 (same). Accordingly, Carson Harbor has failed to raise a triable issue of fact respecting the Government Defendants’ non-permitted release of lead in stormwater runoff prior to issuance of the first NPDES' permit in 1990, and defendants are entitled to judgment as a matter of law on Carson Harbor’s CERCLA claim as a result.

(ii) The Record Evidence Supports The Circuit Court’s Holding

Even if the court were independently to consider the evidence on this point, the result would not differ from that dictated by the law of the ease. While plaintiffs expert, Dr. Gersberg, opined that there was a 99% probability that lead in storm-water flowed onto the property, he offered no opinion as to when such releases may have occurred. Compton’s expert, Dr. Faeder, concluded, based on the relatively low soil sample readings, that stormwater was not the source of the lead in the marsh.

264

The conflict in these opinions creates a triable issue of fact as to whether stormwater discharges are a source of the lead that is present on the property. There is no evidence, however, and thus no triable issue of fact, as to whether the lead

*1185

releases on the property occurred prior to 1990. Neither Gersberg nor any other expert proffered by plaintiff has offered an opinion as to when the lead-contaminated stormwater came onto the property.

265

Carson Harbor has thus failed — as it did previously — to present any evidence raising a triable issue of fact regarding pre-1990 releases of stormwater containing lead.

266

Because it has failed to establish that there were releases that predated issuance of the NPDES permits, such as would support the imposition of CERCLA liability on the Government Defendants, the current state of the record supports granting the Government Defendants’ motion for summary judgment on Carson Harbor’s CERCLA claim.

267

(b) Whether The Release “Caused” Response Costs

The Government Defendants also argue that they are not liable under CERCLA for Carson Harbor’s response costs because Carson Harbor has not established that the response costs were caused by the Government Defendants’ release of lead-contaminated stormwater.

A necessary element of establishing liability under CERCLA is proof that a release or threatened release “caused” plaintiff to incur response costs.

268

See

*1186

Carson Harbor Village, supra,

270 F.3d at 870-71 ;

3550 Stevens Creek, supra,

915 F.2d at 1358 . In evaluating whether this element of a CERCLA claim has been proved, courts do not apply traditional tort notions of causation. See

Nurad, Inc. v. William E. Hooper & Sons Co.,

966 F.2d 837, 846 (4th Cir.) (“The trigger to liability under § 9607(a)(2) is ownership or operation of a facility at the time of disposal, not culpability or responsibility for the contamination”), cert. denied, 506 U.S. 940 , 113 S.Ct. 377 , 121 L.Ed.2d 288 (1992);

Court Galvanizing, supra,

1996 WL 528510 at * 2 (“[C]ourts have held that CERCLA does not import traditional tort notions of causation ... ”);

Louisiana-Pacific Corp. v. Beazer Materials & Serv. Inc.,

811 F.Supp. 1421, 1430 (E.D.Cal.1993)

(“Beazer

”) (“Given the statute’s broad imposition of liability and limited defenses, it has been repeatedly held that CERCLA does not import traditional tort notions of causation”);

Louisiana-Pacific Corp. v. ASARCO, Inc.,

735 F.Supp. 358, 362 (W.D.Wash.1990)

(“ASARCO”)

(“‘[The] structure of CERCLA and its legislative history make it clear that traditional tort notions, such as proximate cause do not apply. Moreover, the practical limits on analytic techniques argue for a weaker causation standard.... Thus, CERCLA requires only a relaxed standard of causation,’ ” quoting

United States v. Bliss,

667 F.Supp. 1298, 1309 (E.D.Mo.1987)).

The language of the statute requires that plaintiff establish a causal link between the release for which defendant is responsible, and the response costs incurred by plaintiff. See

Court Galvanizing, supra,

1996 WL 528510 at * 3 (“[T]he relevant causation inquiry is whether there is a nexus between the release and the response cost incurred”);

Control Data Corp., supra,

53 F.3d at 935, n. 8 (“[E]ven when there is an actual release, a plaintiff must establish a causal nexus between that release and the incurrence of response costs”). The nexus that must be shown, however, is a loose one. In the case of an actual release, the plaintiff need only prove that the defendant’s hazardous materials were deposited at the site, that there was a release at the site, and that the release caused it to incur response costs. It need not show that defendant’s waste was the source of the release or that defendant’s waste caused it to incur response costs. See

Kalamazoo River Study Group v. Menasha Corp.,

228 F.3d 648, 655 (6th Cir.2000) (“It is clear from the text, structure, and legislative history of § 107 that the provision does not require a plaintiff to show that a particular defendant caused either the release or the incurrence of response costs in order to prove liability.... Rather, the text requires only that a plaintiff prove ‘that the defendant’s hazardous substances were deposited at the site from which there was a release and that the release caused the incurrence of response costs’ ” (citation omitted));

United States v. Alcan Aluminum Corp.,

990 F.2d 711, 721 (2d Cir.1993) (“What is

not

required is that the government show that a specific defendant’s waste caused the incurrence of clean-up costs.... In

State of New York v. Shore Realty Corp.,

759

*1187

F.2d 1032, 1044 (2d Cir.1985), we held that the owner of a facility was liable under CERCLA without a finding of causation of the release because ‘including a causation requirement makes superfluous the affirmative defenses provided in section 9607(b)’ ” (emphasis original));

Amoco Oil Co. v. Borden Inc.,

889 F.2d 664, 670, n. 8 (5th Cir.1989) (“[T]he causation requirement has been interpreted in a somewhat relaxed manner due to difficult proof problems inherent in toxic waste cases and CERCLA’s broad liability provisions. Accordingly, in cases involving multiple sources of contamination, a plaintiff need not prove a specific causal link between costs incurred and an individual generator’s waste”);

Flaherty v. Exide Corp.,

C 01-00780 CRB, 2002 WL 202370 , * 2 (N.D.Cal. Jan.22, 2002) (“... to prevail in a cost recovery action a plaintiff must show that defendant is a responsible party (that defendant ‘polluted’ the site), but plaintiff does not have to show that the response costs were incurred as a result of defendant’s specific pollution (or other actions)”);

Elf Atochem North America, Inc. v. United States,

833 F.Supp. 488 , (E.D.Pa.1993) (“[T]he proper focus of this requirement is the causation of the contaminants at the site,

not

the causation of the response costs.... [T]he plaintiff must only show that the defendant caused contamination at the site, and therefore should pay its fair share of the clean-up costs”).

The standard is relatively easy to apply in “single-generator” cases. See

United States v. Alcan Aluminum Corp.,

964 F.2d 252, 266 (3d Cir.1992) (“... in the single generator context, if the response costs were justified, the defendant necessarily caused the incurrence of those costs”). Where the contamination has multiple sources, however, the fact that response costs were justified does not necessarily prove that each generator’s waste caused the release and resulting response costs.

Id.

The Ninth Circuit has recently articulated the causation standard to be applied in multiple generator cases. In

Boeing Co. v. Cascade Corp.,

207 F.3d 1177 (9th Cir.2000), the court held that a plaintiff asserting a CERCLA claim against multiple PRPs need not establish a “but for” causal link between each PRP’s pollution and the response costs incurred.

Id.

at 1183-85 . Rather, the court held, “in the special case of causal overdetermination, i.e., where either polluter’s conduct would have caused the same response costs to be incurred in the same amount, and the conduct was of substantially equal blameworthiness, the proper construction of the causation requirement in the statute is that both polluters should be treated as having caused the response cost.”

Id.

at 1185 .

Other courts have reached similar conclusions.

269

See

Browning-Ferris Industries of Illinois, Inc. v. Ter Moat,

195 F.3d 953, 958 (7th Cir.1999) (“It is easy to imagine a case in which, had X not polluted a site, no clean-up costs would have been incurred; X’s pollution would be a necessary condition to those costs and it would be natural to think that he should pay at least a part of them. But suppose that even if X had not polluted the site, it would have to be cleaned up — and at the same cost — because of the amount of pollution by Y.... [Tjhat should not necessarily let X off the hook.... In that case, the conduct of X and the conduct of Y would each be a sufficient but not a necessary condition of the clean up, and it would be entirely arbitrary to let either (or, even worse, both) off the hook on this basis”);

Control

*1188

Data Corp., supra,

53 F.3d at 936 (“In order to accept the Schloff defendants’ argument, we would have to hold that CERCLA imposes upon a plaintiff the requirement to prove that each type of response cost was separately caused by the defendant’s release. CERCLA simply cannot be read this strictly.... [A] plain reading of the statute leads us to the conclusion that once a party is liable, it is liable for its share, as determined by Section 9613(f), of ‘any’ and all response costs, not just those costs ‘caused’ by its release”).

270

Law/Crandall’s initial environmental assessment detected a “tar-like patch in the ravine.” Carson Harbor hired Park Environmental, which collected and examined soil samples, and later hired McLaren Hart to investigate and remediate the property. After visually inspecting the site and collecting samples, McLaren Hart limited its remediation effort to the concentration of tar-like and slag materials on the property. It removed all but a small portion of these from the site. The Government Defendants contend, as a consequence, that Carson Harbor’s response costs were “caused” by the tar-like and slag materials, for which they are in no way responsible.

There appears to be no question, however, that at the time the tar-like and slag materials were removed, there was evidence that lead from a source other than the tar and slag was present on the property. Park Environmental’s investigation revealed the presence of lead upstream from the tar and slag, and Dr. Amini testified that, although lead was inherently present in the tar-like and slag materials, the composition of the slag was such that lead coming from the surface (e.g., from stormwater runoff) was able to sink into it as a particulate. Dr. Jenkins’ report showed that lead was present in the soil even when samples of the tar-like and slag materials were excluded. Similarly, the McLaren Hart closure report stated that a certain amount of lead remained on the

*1189

property after the excavation was complete.

This evidence is sufficient to raise a triable issue of fact as to whether the lead that allegedly entered the property in stormwater runoff “caused” the response costs incurred. While defendants have proffered evidence demonstrating that lead was inherent in the tar-like material, and that the lead that was inherent was alone sufficient to justify the removal effort, this does not preclude a finding that lead that entered the property through the storm drain system might also have provided a basis for remediation. See

Boeing, supra,

207 F.3d at 1185 . The court is mindful of the Ninth Circuit’s formulation of the causation standard in

Boeing

— i.e., that there must be a showing that “either polluter’s conduct would have caused the same response cost to be incurred in the same amount, and [that] the[ir] conduct was of substantially equal blameworthiness.”

Id.

See also

Browning-Ferris Industries, supra,

195 F.3d at 958 (holding that a portion of plaintiffs response costs should be allocated to a defendant whose “pollution was serious enough ... to require that the site be cleaned up”). Seemingly, other courts have not required a showing that a defendant’s waste was sufficient, in and of itself, to require cleanup. See

Control Data Corp., supra,

53 F.3d at 936. Rather, they have addressed the issue in allocating damages among PRPs under § 9613(f).

Here, there is some evidence that there would have been no remediation if the only contamination at the site was the lead carried in the stormwater. McLaren Hart limited its remediation effort to the tar-like and slag materials, and concluded, once those materials were removed, that no further remediation at the site was necessary. It noted when it was done, however, that “watershed water quality measures” would have to be taken to address the runoff entering the property. The evidence in the record, moreover, supports an inference that lead from the stormwater runoff interacted in some way with the tar-like and slag materials on the site. This potential for “synergistic interaction between the different pollutants”

(Browning-Ferris Industries, supra,

195 F.3d at 958 ), is not fully developed in the record, and precludes a finding on summary judgment that the pollutants for which the Government Defendants are allegedly responsible did not contribute in any way to the release at the site and the resulting response costs. See

Alcan Aluminum, supra,

964 F.2d at 270 (“... if [defendant] proves that the [hazardous substance for which it is responsible] did not or could not,

when mixed with other hazardous wastes,

contribute to the release and the resultant response costs, then [defendant] should not be responsible for

any

response costs” (emphasis original)). Accordingly, the court denies the Government Defendants’ motion for summary judgment on the issue of causation.

b. Responsible Parties Under § 9607(a)

The Government Defendants next argue that Carson Harbor has failed to establish that they are PRPs under CERCLA.

(1) “Arranger” Liability Under § 9607(a)(3)

Under CERCLA, “any person who by contract, agreement, or otherwise

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, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances .... shall be liable....” 42 U.S.C. § 9706 (a)(3)

*1190

(emphasis added). Under this statute, an entity is liable as- a “direct arranger” if it has “direct involvement in arrangements for the disposal of waste.”

United States v. Shell Oil Co.,

294 F.3d 1045, 1055 (9th Cir.2002). Arranger liability may be imposed more broadly, however, on a case-by-case basis.

Id.

(“There is no bright-line test, either in the statute or in the case law, for a broad theory of arranger liability under § 9607(a)(3). Rather, we are required to sort through the fact patterns of the decided cases in order to find similarities and dissimilarities, to the fact pattern of our case”). Under this broad theory of liability, “control is a crucial element of the determination of whether a party is an arranger under § 9607(a)(3).”

Id.

In

Shell Oil,

defendants argued that the “authority to control” the disposal of hazardous materials provided a sufficient basis, standing alone, upon which to impose arranger liability. See

id.

at 1055-59. The Ninth Circuit discussed two Eighth Circuit cases that might be said to stand for that

proposition

—United

States v. Northeastern Pharmaceutical & Chemical Co.,

810 F.2d 726, 743 (8th Cir.1986)

(“NEPACCO”),

in which the court held that “[i]t is the authority to control the handling and disposal of hazardous substances that is critical” to arranger liability, and

United States v. Aceto Agric. Chems. Corp.,

872 F.2d 1373 , 1382 (8th Cir.1989), in which the court stated in dictum that arranger liability was properly imposed on “those who had authority to control the disposal, even without ownership or possession.”

The Ninth Circuit concluded that the decisions could not be so broadly read, however, noting that in

NEPACCO

evidence of actual control provided a basis for the imposition of liability.

Shell Oil, supra,

294 F.3d at 1057 (“In

NEPACCO,

there was actual control exercised by vice-president Lee, who gave permission to the plant supervisor to dispose of the waste at the farm.... In this case, the waste never belonged to the United States, so there was never a United States employee in a position comparable to Lee’s. Further, even if we put the problem of ownership of the waste to one side, Lee exercised actual control over the disposal of waste. In this case, no official or employee of the United States ever exercised actual control over any of the waste disposal at issue”).

Quoting

Iron Mountain,

the court stated its view of arranger liability as follows:

“ ‘It is true that some cases impose arranger liability on parties who did not literally own or physically possess hazardous waste at the time it was disposed of or released. But in each of those cases the party was either the source of the, pollution or managed its disposal by the arranger.... No court has imposed arranger liability on a party who never owned or possessed, and never had any authority to control or duty to dispose of, the hazardous materials at issue.’ ”

Shell Oil, supra,

294 F.3d at 1058 (quoting

Iron Mountain Mines, supra,

881 F.Supp. at 1451 (citations omitted)).

Decisions addressing the liability of municipalities as arrangers are consistent with the standard articulated in

Shell Oil.

In

Transportation Leasing Co. v. State of California,

861 F.Supp. 931, 942 (C.D.Cal.1993), municipalities contracted with private companies to transport residential, commercial, and governmental waste to a disposal site. The court found they could be held liable as arrangers despite the fact that the contract did not specifically mention hazardous waste, and despite the fact that the cities did not know the location of the disposal site. In reaching this result, the

Transportation Leasing

court rejected an argument that ability to control, rather than actual control, was all that was required.

Id.

at 950 . It concluded, however,

*1191

that the cities “constructively posse

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