also reserve three minutes for a vital your honour's were here today because the district court decision in this case and the court below has created the very situation that e p a hoped to avoid when it amended the one nine hundred ninety and c p a national contingency plan to adopt a substantial compliance standards on the one hand you have carson harbor village because they are private party  that found contamination on its property by all accounts it had nothing to do with the contamination it didn't cause the contamination it didn't contribute to the contamination but it voluntarily cleaned up the contamination it did so by going to an environmental agency in this case the regional water quality control board that had jurisdiction reported the contamination to the agency and sought the agency's involvement in the cleanup the agency visited the property on a number of occasions three or four times according to the records the agency reviewed the work plan in carson harbor proposed to implement the site made some comments on the work plan they were revisions to the work plan and the work plan ultimately was approved by the agency and implemented the agency went back to the site took confirmatory sampling to make sure that the work had been done in accordance with its guidelines and the issued a no further action letter certifying that the cleanup had been done according to its guidelines first the answer to your question is yes as long as there is a public agency involved it's responsible for environmental oversight of the property that agency is substantially involved in the work that's done the site that will satisfy the public comment provision the public participation however in this case even putting that aside as a standard and we're we rely on the bed for the fillets case which was decided by the ninth aside from that in this case your honors there was public participation now there was no notice to the general public at large but i would argue that under the national contingency plan in every case and this is what the substantial compliance standard gets to you don't need to involve the general public at large here the interested parties were notified there were several meetings at the site in fact there were meetings that unocal attended the county attended the regional water quality control board attende senator deals attended on behalf of his constituents he was notified so there was public participation in that regard this is not a situation where you had absolutely no public participation and in fact the district court found as much in her hearing or just public discussion of any kind there was no public hearing in this particular case senator deals in this case was a representative that represented the constituents and i believe he was notified in this case by one of the constituents so he would have been there to represent the constituents interest in this case there were no adjacent landowner's that would have been impacted this was a this is a well that is in the middle of the mobile home property so and we're dealing with trying to flag material which was in a relatively confined area so that wasn't a concern that they were adjacent landowner's that could have an impact that there wasn't enough public participation then the difference in facts was miles apart from this case in one case they probably put a sign on the fence in english and i mainly hispanic area that said if you have any questions call this phone proposed and said no this isn't good enough you have to do more we want you to remove more so in essence while it wasn't a formal order because you have a party that was voluntarily agreeing to clean it up you didn't need the board to order them to do it they were doing it voluntarily but in came down to it said that she did not believe that it was a feasibility study and here there was a remedial action plan prepared and the remedial action plan addresses the removal of the site at the site and  also address did not address any other alternatives and the reason it didn't address any other alternatives is because there weren't any and the n c p itself says that in certain circumstances you have to look at the nature and the extent of the contamination and the n c p says in certain circumstances with a private party a more focused remediation plan may be appropriate in other words it doesn't make sense to evaluate infeasible turnitin and here at the very least on the record there is a disputed issue of fact as to whether there were any other alternatives we believe there weren't other than removing and or leaving it in place and the regional water quality control board had already said you cannot lead them terril in place for there wasn't anything more that could be done to go back to the first issue for just a moment before we leave the house of the regional representative that that as a matter of fact he had at the end of the site three or four times he had several meetings that in one of the meetings there was twelve to fifteen people present and one of the exhibits to his declaration  meetings in which the water board was present that he in fact raised an issue at one of these meetings about whether that's the material could be left in place or whether it actually had to be removed those just to name a name a couple of things and mr mr ross and that's in your view enough to create a issue fact absolutely because the interested parties in this case were involved and participation with respect to the methodology that was being used and proposed to remediate this particular site you're below eight minutes and also you mentioned earlier that you want to share time and we still reserve some time y well not really your honor really the issue is timeliness there's not really any serious contention by anybody that these are not authentic letters there was an objection raised on that ground by another party early on in the briefing process upon reviewing the trial court's tentative ruling which included sustaining that objection we introduced prior to hearing  declarations from carson harbor's former and current attorney mr close who was the author or recipient of about half of those letters and a declaration from carson harbor's environmental consultant  meany who is no author or recipient of really the rest of those letters and there's no contention by any of the parties or by the court that these were not sufficient to authenticate the letters rather if you really get down to the bottom of the of the trial court's ruling on this matter in its footnote it's an issue of timeliness upon production of these declarations on the day of hearing the court entertained an objection on the basis of timeliness and the court ruled later now absence objection on the basis of timeliness prior to the hearing there was no contention that there was any prejudice to the parties from the from this this authentication issue being rectified prior to hearing no contention of any harm or unfair surprise there couldn't be these were the very same letters that had been introduced with a prior declaration which the court found insufficient for authentication rother there was just this claim of of time on this issue and on the issue of timeliness really the question is whether or not the failure to previously produce the evidence  causes any harm or prejudice to the other party and again there's no contention let alone evidence that there would be any harm to the other parties and of course as i say there couldn't be whether or not there's substantial justification there for sufficient for the public comment that these thirty eight letters can and will be produced and admitted at trial the issue here really is a matter of timeliness not of the cases cited by the court or by any other parties examines a situation where this objection on authentication is completely rectified prior to the hearing in this case it is and there's not excluded the documents upon review of them it would not have changed the outcome of the holding and so there simply is no prejudice as a result of that ruling and i don't think anybody disputes that the time ss question is well within the court's discretion to rule in the way she did let me also point out if i may one of the things that may have been overlooked certainly in counsel's presentation was that in bedford whether or not the court agrees with the ultimate holding in that case your honor judge high as you were correct that that was an interim remedy that was ordered in that case it was a system and it was done in order to remove the source of the contamination because the contamination was leeching into groundwater and it was simply spreading the problem so as a and mischel almost an emergency remedial interim measure they ordered that this solve a first extraction system be installed now interestingly the court acknowledges that that was done without public comment but then the court goes on to say and this is interim remedial measure is completed public comment will be solicited regarding the remedial investigation feasibility study or the completion of the remediation if no further action is needed so even heard contemplated that the ultimate final remedy was going to involve public participation that is one of the reasons why i believe that judge morrow fashioned the approach to this case you know that she did which is even accepting betfred one needs to look at whether or not the public agency itself has satisfied the public comment period and there's a lot of public data  to the sherwin williams case which we featured in our papers very the court said and i quote public comment means just that public comment and i'd also like to walk the court through the structure of the  a moment about the importance of that public agencies may in fact have a deep concern with certain remedial approaches for example of you have a large waste site you will see the public agencies are typically very heavily involved interesting lee the n c p itself requires that when a public agency does the ultimate in terms of involvement which is conduct the remedy itself it must conduct public hearings and satisfy the public comment period so it's difficult to see how under the structure of the regulation and circle you can have a public park public agency alone substituting then if you look at this case what we have we have a number of parties at these meetings but if you look at who they are they are primarily the  represented because they were accused of having some responsibility for the contamination and in this in essence demand letters were sent to all of us and we were given the opportunity to attend and watch the remedy developed interesting lee george morrow looked at the record and said well you know the only notice that that actually went to the residents who i would think since they live within some live within a stone's throw of this ravine in this trailer home community they would have the primary interest in seeing that the remedy is undertaken in a way that is what's been called the circle quality clean up cost effective not necessarily of high importance to them but certainly the risk posed by any residual contamination would be of interest to them probably i would submit far more interest to  resident who has hazardous waste contamination over their backyard fence than a distant or sometimes even anonymous public a council says they were all notified they were notified in the following way your honor they were notified through a one page piece of paper that said we have discovered contamination in the wetlands is a it's a it's includes lead which requires us under california's health and safety code what's commonly referred to as proposition sixty five i have to notify you and warn you that if you are going to approach that wetland you'll be exposed to lead which is a carcinogen and a reproductive toxin basically that is a notice that dillard was involved is because the residents had to resort to that avenue in order to get some information about what was going on at the site and it's really that that's the key and i think if one looks at the the n c p itself the public participation requirement really is a is featured quite prominently  substantial compliance with the n c p is not a buffet counter approach where you might choose one or two elements out of many and satisfy them and and achieve the standard public participation component and when one looks at the structure of the n c p which is founded forty c f r three hundred point seven hundred governing private party cleanups e p a essentially says the following that a private section five of that regulation goes through the various stages that a party claiming response costs needs to undertake to evaluate the severity of the rest of the problem and ultimately  it requires that the r i f s be performed the best portion of it was judged maro found was lacking here simply says faith the requirement is quite explicit the primary objective of the just wondering what was the minimum necessary under your theory the calling of a public hearing in which maybe half a dozen people might show or maybe a thousand people would show but public participation requirement sensually say if there is a meaningful opportunity for the public to participate or to comment on the remedy selection process that will satisfy the the statute in the this particular property i mean it could have been a simple as this very the club yes in the middle of this mobile home park development that has a huge assembly room they could've called a meeting or two and said ok this is what we're planning to do here's mr ross from the regional board who is reviewing our proposal to clean this stuff up is the record totally devoid of any tenant having exhibited some input into this process of the tenants you know i know of nothing in the record that suggests the tenant said any input other than to contact the political representatives who  feasibility study be required if the proposed solution is the ultimate solution removal of all of this material why go through a silly exercise to look at other  possible alternatives which would have no meaningful aspect to the situation you're carson says they're going to do the most expensive or they're willing to do the most expensive solution why waste your time going through less expensive or more or less effective solutions well your honor that raises an exact point you don't know if there are more effective solutions or less effective solutions or more cost effective solutions all required by the n c p incidentally unless you do the feasibility study in council it is quite say that under a focused as fewer alternatives are evaluated it does not say one alternative is evaluated and in this particular case we don't know for example whether we have a circle of quality cleanup because we don't know if either a no action no action alternative would have been appropriate here or for example what about treatment in situ meaning leaving the material there but in mobilizing it in such a way that it does not spread or expose person your client here which alternative is adopted my client may not your honor only to the extent we're being asked to pay for it and i'm happy to address that issue but the public may because what you have here in particular is although there was a removal of this material not all of it was removed some of it was inaccessible some of this tar and slag material was wrapped up within the roots of a protected willow tree on the site so it's still there when the regional board approved the closure saying ok carson harbor you did enough fine it took some samples and that sampling showed that they were in fact lead level still above the the action level but they approved it anyway so this site although it may be a minimal risk we don't know because risk assessment wasn't done presents a risk at some level and  could for example an engineering control have been more efficient whereby one simply creates barriers so that the public could not have access to the ravine could you have kept it with some other institutional or further engineering control so that there's no chance for water to push the lead down into the soil in the groundwater there's many different options and a few tile exercise no i don't think anybody is interested in that but those instances really are reserved for situations where you have an emergency situation where the agency says ok we've got some real big problems here we have groundwater contaminated it is spreading to drinking water wells we're going to order something immediately and like invent for you had an interim approach where maybe you can get past  more full blown feasibility study as opposed to when you have a situation as you fear where it's a permanent solution to the problem you know the public know that you  property that is a storm channel so what comes in at the north end washes over the contamination and flows out the south and it goes somewhere we don't know where but typically in cases such as water well there could have been you see that highlights one of the other concerns that one would have by saying that the public agency you know participation is enough here the  person harbor the appellant chose to approach the water board with its proposed solution to the tumor in an effort to get a no further action less and that the air quality issue obviously so no but there is another agency department of toxic substances control for example they share jurisdiction with the regional board in many instances now now interestingly within the environmental community it's pretty well known that the  it's approaching is and more flexible in terms of addressing contamination is a very thing in the record with respect to whether this other agency was involved in any way whether they were consulted or nothing in the record whether they were consulted involved not a shred any further unless there's any questions no more questions thank you ron i'm not sure who's going to have the time mr i mean to tell you yes you may have let me just address that last point first your honor in terms of whether there was any other public agencies involved but it could have been well there were other public agencies involved the reason the regional water quality control board was  selected as the appropriate agency in this case was because we're dealing with the wetlands and that would have been in the jurisdiction of the regional water quality control board as well as the department of fish and game which was notified as well as the army corps of engineers and in california well known to council and everybody that's in the environmental field that you don't have to go to every single agency we don't have a we have a cali p a now but it doesn't function like the federal e p a you don't have to go to every agency to get approval of your plan you go to one agency which acts as the lead agency and that agency to the extent that other agencies need to get involved that agency will involve the other agencies so for example if the regional water board like this there were issues outside of its jurisdiction it would have gone to the d t s the the department of toxics and gotten involved is there any evidence that they did was they didn't because there weren't any issues in this case apparently that the that the agency felt like them that there was a removal action and why it was being undertaken so in this case there was more than one notification to the the residence and that and i would argue that the residents were involved in these meetings through their representative mr hill who had more knowledge about these things and i would say any individual resident and not only that in this case the most protective measure with respect to the environment was selected at the hearing materials was an appropriate remedial measure so they chose the most appropriate measure that was protective of the environment you could have done anything else and also there were restrictions put on what could have been done because this was a so whether you could have put a berm in there or whether you could have done other things that would have impacted the flow of water through the wetlands which is also a storm drain channel you know i think those issues would have been raised by the army corps of engineers the department of fish and ga if those are even feasible alternatives which they weren't and there's testimony by mr or dr meenie that the only thing is of all alternatives were either removal or leaving it in place so we would urge the court to adopt the bedford affiliates approach your honour's and and find that under the circumstances of this case there really was substantial compliance with the n c p and the circle quality clean up is what resulted from carson harbors effort thank you thank you counsel the case just argued will be submitted for decision and the