Public Participation is the Sword of Damocles and often the Achilles Heel in a CERCLA cost recovery action. The National Contingency Plan (NCP) is CERCLA’s  way of ensuring the public has an opportunity to meaningfully participate in the design, development and implementation of a site remedial plan. Oftentimes the party seeking cost recovery to its own detriment shunts NCP compliance, in particular the Public Participation requirement, aside or views it as an after thought.  Time after time the failure to incorporate  NCP compliance into litigation strategy from the inception of the case has proven to be a costly blunder.  In determing whether NCP requirements have been satisfied courts focus “on the entirety of the cleanup”. 40 C.F.R. 300.700. Substantial compliance rather than a check the box approach is the accepted standard. 55 Fed. Reg. 8793 – 8795. Public Participation requires: (1) interviewing local officials, community residents and interested parties – prior to beginning field work – to learn their concerns; (2) preparing a formal community relations plan and establishing at least one local “information repository” to make information about site remediation available to the public.; and (3) publishing notice of the chosen remediation plan in a local newspaper so as to provide an opportunity for the public to comment and providing written responses to those comments. 40 C.F.R. 300.430. Carson Harbor Village v. Unocal Corp., 433 F.3d 1260,1266 (9th Cir. 2006).

The detriment of failing to incorporate the NCP in litigation planning was most recently demonstrated in Santa Clarita Valley Water Agency v. Whittaker Corporation (USDC CD CA  June 2022)