RECENT FEDERAL DECISIONS

February 2006

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Ninth Circuit Affirms Summary Judgment Denying Recovery of Cleanup Costs under CERCLA for Failure to Substantially Comply with the National Contingency Plan
Carson Harbor Village, Ltd. v. County of Los Angles et al., ___F.3d___

Before a party can recover a portion of its cleanup costs from a prior owner or other potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), it must demonstrate substantial compliance with the National Contingency Plan (NCP). Among other things, the NCP requires a party conducting a remedial action to provide an opportunity for public participation, and to conduct a feasibility study which identifies and evaluates the selected remedy and as other viable alternatives. In Carson Harbor, the Ninth Circuit Court of Appeals affirmed the District Court’s holding that the defendant was entitled to summary judgment where the plaintiff failed to meet these NCP requirements. With regard to the NCP’s public participation requirements, the Ninth Circuit held that there was no genuine issue of material fact regarding Carson Harbor’s failure to itself afford adequate public notice and opportunity for public participation, and that limited participation by a governmental agency in the selection of the site remedy did not rise to the level of substantial NCP compliance.