In addition to establishing that the work performed by Dames & Moore was consistent with the NCP, Alcan-Toyo must also prove that it was necessary. An investigation into the extent of the hazardous waste problem was surely necessary and the Utilities offer little argument to the contrary. Because the costs incurred for the Dames & Moore evaluation were consistent with the NCP and necessary, the Utilities must pay 90% of them.
The parties do not dispute that the 1990 plan applies to OBG's work, because it was not begun until July of 1990. Therefore, OBG's work "will be considered 'consistent with the NCP' if the action, when evaluated as a whole, is in substantial compliance with applicable requirements in paragraphs (c)(5) and (6) of this section." 40 C.F.R. § 300.700(c)(3)(1) (1990).
The parties do not dispute that the work performed by OBG was a removal action. 40 C.F.R. § 300.700(c)(6) provides that "private parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action." This section specifically cites § 300.415(m), the provision addressing community relations during removal actions. That section discusses the actions to be taken by the "spokesperson" for the "lead agency." Alcan-Toyo argues, therefore, that this section could not apply to it. However, subsection (c)(8) of section 300.700 explicitly states that "any action to be taken by the lead agency listed in paragraphs (c)(5) through (c)(7) may be taken by the person carrying out the response action." 40 C.F.R. § 300.700(c)(8); see also 55 Fed. Reg. at 8795 ("In a private party response action, the private party may perform most of the functions of a lead agency . . . ; there is no support agency in a private party cleanup action."). Alcan-Toyo itself must therefore "inform the community of actions taken, respond to inquiries, and provide information concerning the release [and], at a minimum, [notify] immediately affected citizens." 40 C.F.R. § 300.415(m)(1). Alcan-Toyo admits that it has not done so.
The Utilities argue that the failure to seek public comment should itself render OBG's work not in "substantial compliance." Several courts have held that the failure to seek public comment alone may render a response action inconsistent with the NCP. See, e.g., County Line, supra, 933 F.2d at 1514-15; Gussin Enterprises, supra, 1993 U.S. Dist. LEXIS 4579, 1993 WL at *5 (granting summary judgment to defendant in CERCLA recovery action because plaintiff sought no public comment and therefore was not in substantial compliance with the 1990 NCP). As Alcan-Toyo correctly points out, these courts both addressed the public comment requirement in the context of a remedial action.
I find the reasoning persuasive and applicable, however, to removal actions also.
Public comment is clearly required under 40 C.F.R. § 300.415(m). This section, excluding a few inapplicable provisions, is listed as a requirement with which parties must substantially comply in order to recover their costs. See 40 C.F.R. § 300.700(c)(5)(vi). Under the provision rendering the section governing removal actions necessary for substantial compliance, therefore, the public comment requirement for removal actions is prescribed for cost recovery actions. The EPA, however, has created an additional separate section, explicitly reiterating the requirement that to be consistent with the NCP the party must seek public comment. The fact that the NCP lists the public comment requirement in two separate subsections of the requirements for consistency with the NCP indicates that a failure to fulfill the requirement is not an "immaterial or insubstantial deviation" from the NCP's requirements. 40 C.F.R. § 300.700(c)(4). See also 55 Fed. Reg. at 8795 ("Public participation is an important component of a CERCLA-quality cleanup, and of consistency with the NCP. . . . Thus, EPA has decided that providing public participation opportunities should be a condition for cost recovery under CERCLA.").
Alcan-Toyo may not claim it substantially complied with the NCP when it completely failed to even recognize one of its important requirements. Cf. 55 Fed. Reg. at 8793 (in discussing the decision to require only "substantial compliance," noting that, for example, failure "to provide a public hearing should [not] serve to defeat a cost recovery action if the public was afforded an ample opportunity for comment"). Here Alcan-Toyo did nothing to obtain public input and therefore has not substantially complied with the NCP.
Because the response action performed by OBG was not consistent with the NCP, Alcan-Toyo may not recover the cost of OBG's work. See, e.g., Gussin Enterprises, supra, 1993 U.S. Dist. LEXIS 4579, 1993 WL at *4 (granting summary judgment for defendants where plaintiff's response costs were not incurred consistent with the NCP); Channel Master Satellite Systems, Inc. v. JFD Electronics Corp., 748 F. Supp. 373 (E.D.N.C. 1990) (denying response costs when plaintiff failed to prove they were incurred consistent with the NCP).
For the reasons set forth above, Alcan-Toyo's claim for the cost of work performed by Dames & Moore is granted, with the Utilities jointly liable for 90% of that cost. Alcan-Toyo's claim for the cost of OBG is denied in full.
The Utilities, however, are entitled to more detail than the information currently provided on the Dames & Moore invoices. Alcan-Toyo is ordered to produce more complete documentation of these costs to the Utilities within thirty (30) days. If the Utilities still require more detail before paying Alcan-Toyo, the court will address the issue at that time.
Elaine E. Bucklo
United States District Judge
Dated: November 7, 1995