Agency Supervision Does Not Necessarily Satisfy Public Participation Requirement

In Carson Harbor Village v. Unocal, decided January 12, 2006, the Ninth Circuit addressed one of those oft-repeated but largely untested assumptions of environmental law: that agency supervision of a cleanup is sufficient to meet the public participation requirement of the National Contingency Plan for the purposes of recovering CERCLA response costs. The Ninth Circuit held that Regional Board oversight of the cleanup in Carson Harbor was not sufficient to meet the public participation requirement. The court left open whether greater involvement would have been sufficient, but from the opinion it appears that the Board's supervision in this case was typical of Board involvement in voluntary cleanup cases.