                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                              APR 26 1999
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                  TENTH CIRCUIT



 PUBLIC SERVICE COMPANY OF
 COLORADO, a Colorado corporation,

        Plaintiff-Appellant,
 v.

 GATES RUBBER COMPANY, a
 Colorado corporation; GATES ENERGY
 PRODUCTS, INC., a Colorado                                 No. 98-1015
 corporation; THE GATES
 CORPORATION, a Delaware
 corporation; THE DENVER AND RIO
 GRANDE WESTERN RAILROAD
 COMPANY, a Delaware corporation,

        Defendants-Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                          (D.C. No. 96-N-1922)



Kathryn A. Elzi, Koncilja & Associates, P.C., Denver, Colorado, for Plaintiff-Appellant.

Roger L. Freeman and Dean C. Miller on the brief, Davis, Graham & Stubbs, LLP,
Denver, Colorado, for Defendant-Appellee The Denver and Rio Grande Western Railroad
Company.

Thomas C. Reeve (Linda J. Swanson and Kathleen E. Craigmile, with him on the brief),
Bennington Johnson & Reeve, P.C., Denver, Colorado, for Defendants-Appellees The
Gates Corporation, d/b/a The Gates Rubber Company and Gates Energy Products, Inc.
Kathleen M. Snead, Denver, Colorado, on the brief for Defendant-Appellee The Denver
and Rio Grande Western Railroad Company.


Before PORFILIO, MCKAY and BRISCOE, Circuit Judges.


PORFILIO, Circuit Judge.




       After cleaning up a site contaminated by hazardous substances, Public Service

Company of Colorado (PSCO) filed suit under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 - 9675, to

hold the Gates Rubber Company and the Denver and Rio Grande Western Railroad

Company (Defendants) jointly and severally liable and for contribution to its response

costs. However, finding PSCO’s cleanup was not consistent with the National

Contingency Plan (NCP), the district court granted summary judgment for Defendants.

Public Service Co. of Colo. v. Gates Rubber Co., 22 F. Supp.2d 1180 (D. Colo. 1997).

In this appeal, PSCO contends the court erred in failing to recognize that the state of

Colorado’s extensive involvement in its cleanup of the site was tantamount to compliance

with the NCP. Although the proposition may be sustainable under certain circumstances,

the facts here permit no such conclusion. We therefore affirm.




                                            -2-
                                             I.

       From the 1940's through the 1980's, the Barter Machinery and Metals Company

(Barter), a metal salvaging business, bought scrap iron and copper, electrical equipment,

transformers,1 and old batteries from PSCO and some other companies. Barter was

located just northeast of the intersection of South Santa Fe Drive and West Bayaud

Avenue in Denver, Colorado, and was comprised of five parcels of land: 100 South Santa

Fe Drive (Lot A); 101 South Santa Fe Drive (Lot B); 701 West Bayaud Avenue (Lot C);

60 Inca Street (Lot D); and 60-68 Inca Street (Lot E) (collectively, the Site). In 1990, the

Environmental Protection Agency (EPA) placed Lot C, the largest of the parcels

comprising Barter, on the Superfund Comprehensive Environmental Response,

Compensation and Liability Information System (CERCLIS), an inventory of sites

targeted for EPA planning and tracking. Barter then hired an environmental consulting

company which performed limited soil sampling and analyzed the heavy metals content of

oil and iron stained areas and sludge in a drain pit. This initial investigation confirmed

the presence of PCBs and lead contamination in the limited areas tested. Recognizing its

potential liability for cleaning up the contamination,2 PSCO agreed to share Barter’s costs

       1
        The junk transformers sold to Barter for salvage contained PCB oil which leaked
and eventually contaminated the soil and groundwater. Scrap metal and lead-acid
batteries deposited lead into the soil.

       In an interoffice memo, PSCO’s Environmental Services Manager wrote, “PSCO
       2

                                                                                (continued...)

                                            -3-
for a more comprehensive investigation of the site. In 1992, PSCO and Barter negotiated

PSCO’s cleaning up the Site in exchange for title to the property. It then planned to sell

the Site to recoup its cleanup expenses. As contamination surfaced on additional lots,

PSCO included those lots in the cleanup.

       In that effort, PSCO retained ERM-Rocky Mountain, Inc. (ERM) which evaluated

the soil and ground water conditions of Lots A, C, and D and found elevated levels of

heavy metals including lead in high concentrations and polychlorinated biphenyls (PCBs)

exceeding Colorado Basic Ground Water and federal hazardous waste standards. The

ERM study was followed by a “Proposal for Remedial Action,” dated November 6, 1992,

submitted by United States Pollution Control, Inc. (USPCI), which PSCO retained to

clean up Barter. In that proposal, USPCI set its objective “to remediate the areas within

the site known to contain PCB contamination ..., mixed PCB/lead contamination (as yet

undefined), and lead contaminated areas (as yet undefined).” USPCI proposed

“[r]emediation will consist of decontamination or removal of large surface debris,

followed by the removal, treatment, and disposal of contaminated soil.” USPCI’s cleanup

began on November 30, 1992, and included constructing a fence and gate around the




       (...continued)
       2

is ‘on the hook’ as a PRP [potentially responsible party under CERCLA] with over 25
years of selling scrap transformers to Barter Machinery and Supply Company well
documented (over 1,200 transformers from 1986 alone, plus hundreds of tons of scrap
metal).”

                                            -4-
property.3 On the fence, PSCO posted English-only signs reading “Any Questions about

Site Activities, please call 294-8488.” USPCI proceeded to excavate soil, pocking the

area with piles of potentially contaminated soil which it planned to decontaminate on site

by feeding the excavated material into a pug mill. Once the “stabilized material” was

“staged in discrete piles,” USPCI proposed to transport the substance to a “selected

disposal facility.” However, the piles alerted the Colorado Department of Health (CDH)

to the cleanup.4

       On March 5, 1993, Walter Avramenko, a Corrective Action Unit Leader at CDH,

wrote PSCO acknowledging the work plan to stabilize lead contaminated soil on site;

requesting further testing and information; and questioning the facility where PSCO

planned to transport the materials. Although agreeing with PSCO’s initial goals and

methods, Mr. Avramenko told PSCO “to modify the plan to address the concerns and

recommended changes,” and noted the anticipated consent agreement between the parties

would address additional matters.

       On April 22, 1993, PSCO responded to CDH, acknowledging “the regulatory

driven concerns behind CDH’s inquiry,” as balanced against its own need to remove the

       3
        It is not clear whether the fence was constructed to keep vandals out or to protect
the surrounding neighborhoods.
       4
        A “Weekly Report,” made before the piles were discovered, indicated CDH, EPA,
and OSHA personnel would be informed of the Site project and might visit. In a letter to
CDH, Harry Moseley, PSCO’s Environmental Programs Unit Manager, stated PSCO had
notified CDH on December 8, 1992, of the “removal action of polychlorinated biphenyls
(PCBs) and lead contaminated soil and debris.”

                                            -5-
contamination in a cost effective manner for its rate payers “while ensuring protection of

human health and the environment.” It dubbed its proposed solution a “‘win-win’

situation for all.” However, on May 26, 1993, Frederick Dowsett, CDH’s Chief of

Monitoring and Enforcement of Hazardous Material, responded, enumerating CDH’s

“serious concerns” about the cleanup plan and urging PSCO to enter into a Compliance

Order on Consent “to resolve the regulatory issues” related to investigation, management,

and remediation of the Barter Site. The resulting Order on Consent, signed on September

20, 1993, catalogued the work CDH expected PSCO to perform, particularly to ensure the

proper management of waste stockpiles and to continue soil and water sampling to track

levels of contamination. CDH ordered PSCO to submit monthly progress reports and a

final report documenting all soil removal activities. Eventually, PSCO completed the

cleanup in early 1996.

       In June 1993, PSCO notified Defendants of their potential liability for a

proportionate share of the $9 million expended to clean up the Site. When Defendants

balked, PSCO filed the underlying action seeking cost-recovery under CERCLA, 42

U.S.C. § 9607(a); CERCLA contribution, 42 U.S.C. § 9613(f); a declaratory judgment

Defendants are liable for any future necessary response costs consistent with the NCP, 28

U.S.C. § 2201, 42 U.S.C. § 9613(g)(2); and recovery under state law for nuisance and

joint and several liability under the Uniform Contribution Among Tortfeasors Act

(UCTA).


                                           -6-
       On cross motions for summary judgment, the district court held as a matter of law

PSCO’s cleanup was a remedial action which did not substantially comply with the NCP.

22 F. Supp.2d at 1194. With that conclusion, the court disposed of all of PSCO’s

CERCLA-related claims and refused to exercise supplemental jurisdiction over the state

law claims.

       Because the record before the district court was fully developed, it was appropriate

for it to decide whether PSCO met its prima facie burden of establishing NCP

consistency. County Line, Inv. v. Tinney, 933 F.2d 1508, 1517-18 (10th Cir. 1991).5 We

review that determination de novo applying our summary judgment jurisprudence to view

the entire record through PSCO’s lens, drawing all reasonable factual inferences in its

favor to assure there is “no genuine issue as to any material fact” meriting trial. Fed. R.

Civ. P. 56(c).




       5
        To state a cause of action under § 9607(a), a plaintiff must allege (1) defendant is
a “covered person” within the meaning of CERCLA; (2) a “release” or “threatened
release” of any “hazardous substance” from the site in question has occurred; (3) the
release or threatened release caused plaintiff to incur costs; (4) plaintiff’s costs are
“necessary” costs of response; and (5) plaintiff’s response action or cleanup was
consistent with the NCP. Channel Master Satellite, Systems, Inc. v. JFD Electronics
Corp., 748 F. Supp. 373, 381 (E.D. N.C. 1990). Consistency with the NCP is not only an
essential element of proof under § 9607(a) but also becomes the lynchpin for § 9613(f)
contribution.

                                            -7-
                                             II.

       In 1980, Congress enacted CERCLA, 42 U.S.C. §§ 9601-9675, in the wake of the

Love Canal disaster, “to establish a comprehensive response and financing mechanism to

abate and control the vast problems associated with abandoned and inactive hazardous

waste disposal sites.” H.R. Rep. No. 96-1016, pt. I, at 1 (1980), reprinted in 1980

U.S.C.C.A.N. 6119, 6125. In 1986, Congress amended CERCLA, passing the Superfund

Amendments and Reauthorization Act (SARA) to fortify its broad, remedial purpose “to

facilitate the prompt cleanup of hazardous waste sites and to shift the cost of

environmental response from the taxpayers to the parties who benefitted from the wastes

that caused the harm.” OHM Remediation Services v. Evans Cooperage Co., 116 F.3d

1574, 1578 (5th Cir. 1997).

       CERCLA’s cost-shifting scheme is found in § 107(a), 42 U.S.C. § 9607(a), which

imposes strict liability on four classes of “potentially responsible parties. (PRPs).”6

United States v. Colorado & Eastern R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995).

Section 9607(a) provides, in part:

       (4) any person who accepts or accepted any hazardous substances ... shall
       be liable for–
              ....



       6
        The categories of PRPs broadly include current and former owners and operators
of a facility or vessel involved in hazardous substance disposal and persons who arranged
for or accepted hazardous substances for disposal or transportation. 42 U.S.C. §
9607(a)(1)-(4).

                                             -8-
              (B) any other necessary costs of response incurred by any
              other person consistent with the national contingency plan.

To facilitate the cost-shifting to all PRPs, Congress added § 113(f)(1) under SARA to

provide, “[a]ny person may seek contribution from any other person who is liable or

potentially liable under section 9607(a) of [CERCLA]” for its costs of recovery. The

present action sought to impose joint and several liability on Defendants under

§ 9607(a)(4)(B) for allegedly arranging for the disposal of hazardous substances at Barter

and to require them to contribute to PSCO’s response costs. Both claims require

compliance with the NCP. Bancamerica Commercial v. Mosher Steel of Kan., 100 F.3d

792, 796 (10th Cir. 1996).

       The NCP is EPA’s regulatory template for a “CERCLA quality cleanup.” County

Line, 933 F.2d at 1514 (citation omitted). It “sets performance standards, identifies

methods for investigating the environmental impact of a release or threatened release, and

establishes criteria for determining the appropriate extent of response activities.” OHM

Remediation, 116 F.3d at 1579; 40 C.F.R. pt. 300. The regulations provide: “A private

party response action will be considered ‘consistent with the NCP’ if the action, when

evaluated as a whole, is in substantial compliance with the applicable requirements in

paragraphs (5) and (6) of this section and results in a CERCLA-quality clean-up ....” 40

C.F.R. § 300.700(c)(3)(I).

       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,

                                            -9-
and is geared to address an immediate release or threat of release.7 Bancamerica

Commercial, 100 F.3d at 797; County Line, 933 F.2d at 1512 n.6; Public Service, 22 F.

Supp.2d at 1187; 42 U.S.C. § 9601(23). 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. Bancamerica Commercial, 100 F.3d at 797; 42 U.S.C. § 9601(24). Elements of

either response action may overlap and semantics often obscure the actual nature of the

cleanup performed. General Electric Co. v. Litton Industrial Automation Systems, Inc.,

920 F.2d 1415, 1419 (8th Cir. 1990) (“Any distinction between ‘excavation’ of

contaminated soil and ‘removal’ of contaminated soils is one that eludes us.”).

       Finally, it bears emphasizing the EPA has expressly resolved a conflict in the

circuits under the earlier NCPs over whether the regulations require strict or substantial

compliance with the NCP for a response action to be deemed consistent. Section

300.700(c)(3)(I) defines “consistent with the NCP” to require substantial compliance

upon evaluating the cleanup as a whole, and “immaterial or insubstantial deviations” from

the provisions of 40 C.F.R. part 300 “will not be considered not consistent with the

NCP.” 40 C.F.R. § 300.700(c)(4). Response costs incurred under the 1990 NCP, like

those here, are subject to review under the substantial compliance standard. Thus,




       It is instructive that under 42 U.S.C. § 9604(c)(1) a removal action must be
       7

capable of being completed within one year and cost no more than $2 million.

                                           - 10 -
although the regulations do not expressly define “consistent,” we believe those response

actions reflecting in substance NCP procedures and criteria will be deemed consistent.

       Under § 300.700 of the regulations, a response action will be “consistent with the

NCP” if the private party substantially fulfills requirements for (1) worker health and

safety; (2) documentation of cost recovery; (3) permit requirements; (4) identification of

applicable or relevant and appropriate requirements (ARARs);8 (5) remedial site

evaluation; (6) remedial investigation/feasibility study and selection of remedy (RI/FS),9

and (7) providing “an opportunity for public comment concerning the selection of the

response action” which might include preparing a formal community relations plan,

ensuring opportunities for public involvement, and disseminating information to the

community. Although the regulations are less complex and comprehensive for removal

actions to reflect the EPA’s interest in facilitating a private party’s swift response to a

threatened release, the NCP’s regulatory framework remains EPA’s main leverage in



       8
        Section 300.400(g)(2) sets forth considerations for responding to a hazardous
release in an appropriate and relevant manner by looking to whether “a requirement
addresses problems or situations sufficiently similar to the circumstances of the release or
remedial action contemplated.” These include the medium or substance regulated or
affected at the CERCLA site; the activities regulated; whether there are any variances,
waivers, or exemption at the CERCLA site; the type and size of the place regulated; and
whether use or potential use of affected resources are contemplated. Only state standards
that are more stringent than federal requirements may be considered in setting the ARARs
for a particular site. § 300.700(g)(2) and (3).
       9
        The RI/FS requirements found in 40 C.F.R. § 300.430 reflect a program goal “to
select remedies that are protective of human health and the environment, that maintain
protection over time, and that minimize untreated waste.” § 300.430(a)(1)(i).

                                             - 11 -
assuring the quality and consistency of private party response actions when surrounding

communities and the environment are put at risk. Channel Master Satellite, Systems,

Inc. v. JFD Electronics Corp., 748 F. Supp. 373, 394 (E.D. N.C. 1990).

       In addition, Section 9607(a) provides two distinct burdens in establishing

consistency with the NCP. Under subsection (A), the United States government, a State,

or an Indian tribe may recover “all costs not inconsistent with the national contingency

plan;” while a private party must prove its response action is consistent with the NCP.

Washington State Dept. of Transp. v. Natural Gas Co., 59 F.3d 793, 799-800 (9th Cir.

1995). In this appeal, PSCO seeks to bootstrap itself to the state’s presumption of

consistency with the NCP.



                                            III.

       PSCO contends its cleanup, geared to the less stringent requirements of a removal

action although, in effect, equally appropriate for a remedial action, was generated by

CDH’s Consent Order and should be presumed to be consistent with the NCP. As a

generic proposition, the contention has precedent, Bedford Affiliates v. Sills, 156 F.3d

416, 428 (2d Cir. 1998); however, under the facts of this case, it rings hollow.

       First, to determine which NCP regulations apply, PSCO urges the district court

erroneously concluded the Barter cleanup was a remedial action by focusing exclusively

on the permanent nature of the remedy and ignoring the actual chronology of the cleanup.


                                           - 12 -
That is, PSCO insists although its initial response action “was planned to last eleven

weeks,” the unexpected discovery of lead contamination injecting CDH into the process

caused “the total response action” to last only thirty months. Thus, it maintains its

cleanup was not protracted as the district court found. Moreover, contrary to the district

court’s perception that excavating and transporting hazardous materials from a site

constitutes a permanent remedy, it contends the case law is replete with similar factual

settings found to be removal actions, and CERCLA’s own definition of a removal action

supports its position.

       PSCO relies principally on General Electric, 920 F.2d at 1415, which, it

maintains, involved similar facts although the Eighth Circuit deemed the response a

removal action. In that case, GE commenced a cleanup of cyanide-based electroplating

wastes, sludge, and other pollutants on a site GE purchased from Litton Industries. In

1986, GE negotiated a consent decree with the Missouri Department of Natural Resources

which expressly required any cleanup action to be consistent with the NCP. A site

investigation produced several remedies, the most expensive of which, excavation of

contaminated soil and drums containing highly contaminated substances, was

implemented. In 1988, the state declared the site had been properly cleaned. GE spent

approximately $84,000 in the RI/FS phase and $851,000 in actual cleanup of the site

which took two years.




                                            - 13 -
       PSCO declares the case a Cinderella fit by creating a bright line in its appellate

stance between its initial PCB investigation and cleanup and its lead cleanup, which it

characterizes as a separable and subsequent undertaking.10 For PSCO’s rendition, CDH

became involved when it discovered the piles of lead contaminated soil after PSCO had

dealt with the PCB wastes. Thus, the Consent Order, which was the blueprint for the lead

cleanup, was spawned solely by the lead contamination. Indeed, PSCO seeks

contribution from Defendants only for its lead cleanup. Because the cleanup began after

September 20, 1993, the date of the Consent Order, and targeted removal of the piles of

lead contaminated soil, which it promptly performed over the next thirty months, the

action is properly deemed one for removal, PSCO reasons.

       The record belies this version. In 1989, Barter, concerned about EPA’s interest in

the Site, retained ATEC Environmental Consultants (ATEC) to do a preliminary

environmental assessment. ATEC’s report noted the presence of PCBs and identified

high levels of lead in some of the soil it sampled. Subsequently, PSCO undertook its own

investigation and cleanup and, as noted, retained USPCI to develop and implement a

remedial plan in 1992, well before the state’s involvement. USPCI’s report, entitled

“Proposal for Remedial Action,” specifically addresses lead contaminated soil removal




        Defendants contend PSCO raises this argument for the first time on appeal,
       10

which is confirmed by the record. Following our jurisprudential practice, we do not
consider it on appeal. Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 489
(10th Cir. 1998).

                                            - 14 -
with on-site stabilization and rail transportation. Although a removal action involves a

prompt response to a release or threatened release of hazardous substances, PSCO studied

the site from at least 1991 when it and Barter entered into an environmental agreement

until 1992 when ERM filed a second preliminary assessment. By its own assertion,

PSCO expended approximately $9 million and did not complete the cleanup until 1996, at

least four years after it began. PSCO intended to remediate the Site to sell it and recoup

its cleanup costs. That is, PSCO intended to effect a permanent remedy. Although PSCO

“removed” and “excavated” soils and buried storage drums, neither of those acts alone

nor their particular labeling transforms the cleanup into a removal action. The district

court did not err in concluding PSCO undertook a remedial action which triggered the

more detailed requirements of the NCP. Minnesota v. Kalman W. Abrams Metals, Inc.,

155 F.3d 1019, 1024 (8th Cir. 1998).

       However, even under the district court’s purported misapprehension of the nature

of the response performed, PSCO contends its CDH-mandated cleanup must be deemed

consistent with the NCP because of the state’s “intensive involvement and comprehensive

oversight in the cleanup.” It urges in effect the district court erroneously applied a strict

compliance standard and “hypertechnical analysis,” rejecting its initial investigation, site

evaluation, and proposed remedy selection because the documents did not bear the precise

labels the NCP requires. More egregiously, it contends the district court devalued




                                            - 15 -
PSCO’s effort to involve the surrounding community when, in fact, “the CDH did

function as parens patriae.”

       Again neither the record nor precedent supports this version. The record

establishes although CDH disapproved of some of the techniques USPCI was using to

neutralize contaminated soils and required PSCO to ship its contaminated substances to a

different facility, CDH was never involved in assessing the Site, proposing alternative

remedies, overseeing the remedy, or involving the surrounding community. In a May 26,

1993 letter from CDH to PSCO, CDH documented its “serious concerns” about “PSCO’s

activities at the Barter facility,” including placement of hazardous waste into piles with

the attendant possibility of spreading the contamination through wind blown dispersion;

possibly inadequate sampling methods being utilized; the proposed use of a pug mill to

treat contaminated soils; and its need of “additional information to evaluate the adequacy

of investigation.” The record contains no sequence of documentation of the cleanup that

occurred once the Consent Order was signed. Indeed, CDH was not PSCO’s alter ego in

the cleanup. Rather, the record discloses CDH was concerned with compliance with state

requirements which do not fully mirror those of the NCP.11




        Contrary to PSCO’s argument, our analysis does not afford federal consent
       11

decrees the presumption of consistency while denying that presumption to state consent
decrees. Further, Arizona v. Components Inc., 66 F.3d 213, 216 (9th Cir. 1995), upon
which it relies, is wholly inapposite.

                                            - 16 -
       Washington State Dept. of Transp., 59 F.3d at 793 (WSDOT), is instructive. In

that case, the Ninth Circuit held WSDOT was a “state” under § 9607(a)(4)(A) for

purposes of affording a presumption of consistency to its cleanup of hazardous waste.

However, the court proceeded to conclude WSDOT’s cleanup was not consistent with the

NCP. Although WSDOT’s lead representative was not even aware of the NCP and its

consultant did not refer to the NCP, the Ninth Circuit offered that “an environmental

cleanup could conceivably follow a standard procedure consistent with the NCP, even if

the NCP is not actually referenced.” Id. at 803. From that stance, the court proceeded to

view WSDOT’s actions under the NCP standards to decide whether they, in fact, though

not in name, comported with the regulations. At each stage, the court found the cleanup

failed to achieve even pro forma conformity. The remedial investigation “failed to

determine the nature or extent of the threat posed by the tar-like material,” id.; the

development and screening of cleanup remedies failed to account for all hazardous

substances and testing results; and WSDOT “failed to provide an opportunity for public

review and comment of the alternative remedial measure it was considering.” Id. at 805.

Because of this “high degree of inconsistency,” the court concluded WSDOT was not

entitled to recover its response costs under § 9607. Id.

       Similarly, the record here discloses PSCO undertook the Barter cleanup without

reference to the NCP. PSCO’s predominating remedial concern was financial, to create a

“win-win” position for itself and its ratepayers and to defuse or minimize any public


                                            - 17 -
scrutiny of the effort.12 CDH’s initial concern focused on the remedy PSCO selected,

creating piles of contaminated matter for on-site disposal using a technique that was

potentially harmful to the surrounding community. However, the Consent Order

addressed matters fundamental to the preliminary remedial investigation and

determination of the nature and extent of the threat presented. Neither PSCO nor CDH

developed alternative courses of action touching on “project scoping, data collection, risk

assessment, treatability studies, and analysis of alternatives.” 40 C.F.R. § 300.430(a)(2).

       Further, the Consent Order was silent on any requirement to inform the public

about the Site and its cleanup.13 In that absence and for its part, PSCO did nothing to

fulfill the NCP’s community relations obligations. 40 C.F.R. § 300.430(c). Indeed,

PSCO’s only effort to involve the public was to place signs in English on the fence

erected to contain the Site. The signs read “Any Question About Site Activities, please

       12
         After the Rocky Mountain News printed an article about the Barter Site, PSCO’s
public relations department sought to keep a low profile. In a deposition, its
representative stated, “Public Service Company likes to have its customers view it as an
environmentally conscious company. The public has a certain perception about PCBs as
contaminants, and those issues don’t always get put in the proper context.”
       13
         This 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 Bedford, 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.” Id. at 428.

                                           - 18 -
call 294-8488.” This effort to inform the predominantly Hispanic community

neighboring the Site or solicit their comments wants substance.14

       “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.”

Bedford Affiliates, 156 F.3d at 428. Other than its argument, PSCO can direct us to no

record evidence of the state’s comprehensive involvement in its cleanup. Indeed, stripped

of argument, the facts closely track those in County Line Inv., 933 F.2d at 1512-14.

       Thus, PSCO has failed to set forth any facts permitting us to find a triable issue on

the consistency of its cleanup with the NCP. We therefore AFFIRM the district court’s

order granting Defendants summary judgment.




       14
         PSCO conceded that although several people in the area approached workers on
the Site with questions about the activity, there was no effort to provide information.

                                            - 19 -
