Regional Airport Authority of Louisville and Jefferson County v. Lfg, LLC Navistar International Transportation Corporation

OPINION

I. Introduction

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-75, permits private party property owners to recover from prior private party property *700 owners certain costs associated with the cleanup of contamination caused by the prior owners, where the cleanup costs were “necessary.” “Necessary” costs means they were incurred in response to a threat to human health or the environment, see 42 U.S.C. § 9607(a)(4)(B), and “consistent” with the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), see 42 U.S.C. § 9607(a). The NCP requires, among other things, completion of a remedial investigation (“RI”), feasibility study (“FS”), and a record of decision (“ROD”), 1 along with an opportunity for public comment. See 40 C.F.R. pt. 300. In Kentucky, for any risk management-based alternatives for dealing with contamination (i.e., remediation that stops short of removing the contamination), the Kentucky Division of Waste Management (“the State”) requires a baseline risk assessment (“BRA”). For soil remediation, the State must approve a soils management plan. Plaintiff-Appellant Regional Airport Authority of Louisville and Jefferson County (“the Authority”) brought a CERCLA action against Defendants-Appellees LFG, LCC (“LFG”) and Navistar International Transportation Corporation (“Navistar”) (collectively, “Defendants”) for costs the Authority allegedly incurred in the remediation of property previously owned by Defendants. The district court granted Defendants summary judgment on the CERCLA claims, holding that the remediation was unnecessary and that the Authority failed to comply with the NCP. The Authority now appeals from that judgment.

The Authority also appeals from two other judgments. The first dismissed the Authority’s common-law equitable indemnification claim on grounds that CERCLA provides an adequate legal remedy. The second overruled the Authority’s objection to the magistrate’s order compelling the production of certain allegedly privileged documents. Included in the latter challenge is the issue of whether attorney opinion work product communicated to testifying experts is protected from disclosure-an issue of first impression in this Circuit. For the reasons that follow, we AFFIRM all judgments.

II. Background

A. Facts

In June 1988, the Authority commenced the Louisville Airport Improvement Program (“airport expansion”), whereby it intended to expand Standiford Field (also known as Louisville International Airport). In order to accomplish its objectives, the Authority needed to condemn hundreds of parcels of private property. Among those was a 130-acre parcel owned by LFG (“the Site”) that had been put to heavy industrial use for nearly fifty years. 2 The plan was to build new runways on the Site. Defendants admit that they used hazardous materials on the Site throughout their occupancy of the Site, and the Authority knew the Site was contaminated at the time of condemnation.

The airport expansion involved the use of federal funds, which required the Authority to complete an environmental impact statement (“EIS”). The final EIS was prepared in 1990, three years before the Authority acquired the Site from Defendants and six years before it took possession in 1996. 3 The EIS indicated that *701 at least some remediation would be necessary, and that the cost to remediate the Site would account for $9.5 million of the estimated $17.5 million total cost of remediation for the airport expansion.

Following subsequent environmental investigation, the Authority contacted the State regarding the contamination. In 1994, the Authority retained Camp, Dresser & McKee, Inc. (“Camp Dresser”) to investigate further the extent of the contamination and the need, if any, for remediation. In November 1996, Camp Dresser reported to the Authority the results of its investigation in its Data Summary Report. The Authority then relayed this report to the State a month later.

In January 1997, the Authority began the final demolition phase of the existing structures on the Site. In February, the State sent a letter to the Authority explaining that Camp Dresser had conducted sampling at the Site. The letter further explained that the Authority should begin to focus its efforts on determining appropriate remedial alternatives. Despite this, the Authority did not evaluate the risk or any potential remedial measures, nor did it seek to complete a BRA. In fact, one month later in a weekly status report, the Authority instructed the following:

Major redirection has taken place on this job regarding the “model” that we are using for RI/FS. The NCP for the most part has been replaced with more of a no-nonsense approach to fulfilling Kentucky’s requirements under their [sic] “mini-Superfund” program. Therefore, there are but three major deliver-ables on the horizon: 1) An RI/FS Work Plan (our “draft” to client on 3/13/97), 2) a “Soils Management Plan” (to be produced by others), and 3) an RI/FS Report, which will include preliminary design for groundwater remedy. A baseline risk assessment will not be completed.

In May 1997, shortly after the demolition was completed, the State conditionally approved the Authority’s soil management plan.

Eventually, the Authority had Camp Dresser prepare an RI/FS to analyze the Authority’s options for groundwater protection and to make specific recommendations. In September 1997, the Authority received the RI/FS. The Authority presented those reports to the State for approval in October. However, the Authority decided not to remove the contamination as recommended but instead pursued a risk management-based remedy. In the words of the runway project manager, the Authority “approved a substantial departure from the classic RI/FS model.” The Site’s west runway was completed and open for use in December 1997.

Following completion of the west runway, the Authority directed Camp Dresser to prepare a BRA. Camp Dresser delivered its findings in April 1998. The Authority submitted the BRA to the State later that month. In a letter dated almost a year after the runway was operational, the State notified the Authority that both the RI/FS and BRA had been approved. The letter also stated that the State “would support” any effort by the Authority to hold a formal public comment period, although the State noted that it might “not be worthwhile due to the fact that the work ha[d] already begun.”

On February 24, 1999, the Authority published a notice in the Louisville Courier-Journal announcing a March 4 public meeting to discuss the remediation. A meeting was so held, but no one other than the Authority’s lawyers attended.

The Authority never completed a ROD. In fact, the Authority decided sometime in late 2000 or 2001 that it would not file a ROD. Instead, in March 2002, the Authori *702 ty filed with the State a Remedial Plan, which summarized the BRA, RI/FS, and soils management plan, and described the actions involved in preparing the Remedial Plan. The State approved the Remedial Plan in a letter dated May 24, 2002.

B. Procedural History

On May 15, 1998, after submitting the BRA to the State but before the State’s response, the Authority filed the present action against Defendants to recover environmental response costs associated with the Site. The district court granted the Authority leave to file an amended complaint in May 2001. Claims One and Two of the amended complaint sought relief under CERCLA §§ 107(a), 113, respectively. Claim Three sought relief under the Kentucky Superfund Act. Claims Four, Five, and Six alleged various state law causes of action. Finally, Claim Seven sought equitable indemnification under Kentucky common law.

Defendants’ answer denied all liability and alleged counterclaims almost identical to Claims One, Two, Three, and Seven of the complaint. Defendants simultaneously filed a motion to dismiss Claims Three and Seven of the complaint for failure to state a claim. On February 15, 2002, the district court granted the motion, concluding that the Kentucky Superfund Act does not provide for a private right of action and that equitable indemnification is not proper because CERCLA provides an adequate legal remedy. On June 19, 2003, the district court granted Defendants’ motion for judgment on the pleadings as to Claims Four through Six. That left only the CERCLA claims remaining.

An extensive discovery period ensued. During this time, Defendants sought to compel the production of thousands of documents relating to communications between attorneys for the Authority and employees of outside companies like Camp Dresser that worked closely with the Authority on the airport expansion. The Authority responded that the documents were protected from discovery by the attorney-client privilege. On May 4, 2001, the magistrate judge ordered the Authority to produce all but 151 documents, with the remaining 151 to be examined in camera. On November 19, 2001, following an in camera review, the magistrate judge ordered the Authority to produce the remaining documents. The Authority objected, and the district court affirmed the May 4 order but remanded the November 19 order for reconsideration of whether the remaining 151 documents were privileged communications.

On remand, the magistrate judge reaffirmed the November 19 order on grounds that the communications “were not made to provide legal advice to the client,” and moreover that their “wide dissemination to employees of [Camp Dresser] would have waived any ... privilege.” On November 19, 2003, the district court affirmed the order of the magistrate judge without opinion. The Authority petitioned this Court for a writ of mandamus in September 2003. This Court denied that petition.

In June 2004, Defendants filed a motion for summary judgment on the remaining claims. The Authority filed its own motion for partial summary judgment on three elements of its CERCLA claims and on Defendants’ counterclaims. The district court granted summary judgment for Defendants on the Authority’s CERCLA claims. The court reasoned that the Authority could not succeed at trial, because the evidence presented did not demonstrate that the costs incurred were “necessary,” or that the Authority presented “appropriate remedial alternatives” in a timely manner.

The Authority now appeals (1) the summary judgment that foreclosed its CERC- *703 LA claims, (2) the dismissal of its equitable indemnification claim, and (3) the enforcement of the magistrate judge’s discovery orders.

III. Analysis

A. CERCLA Claims

The first issue is whether the district court erred in granting summary judgment for Defendants on the Authority’s CERCLA claims. 4

We review a district court’s grant of summary judgment de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000) (en banc). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “An issue of fact is ‘genuine’ if a reasonable person could return a verdict for the non-moving party.” Farhat v. Jopke, 370 F.3d 580, 587 (6th Cir.2004). We must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A prima facie case for CERCLA recovery under § 107(a) has four elements: (1) the property is a “facility”; (2) there has been a “release” or “threatened release” of a hazardous substance; (3) the release has caused the plaintiff to incur “necessary costs of response” that are “consistent” with the NCP; and (4) the defendant is in one of four categories of potentially responsible parties. Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 541 (6th Cir.2001). Only the third element is at issue in this appeal. We analyze separately whether the response was “necessary” and whether it was “consistent” with the NCP.

1. “Necessary”

As the language of the statute implies, whether the costs were “necessary” is a threshold issue for recovery under § 107(a). See 42 U.S.C. § 9607(a)(4)(B) (stating that a cause of action lies for “any other necessary costs of response incurred by any other person consistent with the [NCP]”); G.J. Leasing Co. v. Union Elec. Co. (G.J. Leasing II), 54 F.3d 379, 386 (7th Cir.1995) (“The statutory limitation to ‘necessary’ costs of cleaning up is important. Without it there would be no check on the temptation to improve one’s property and charge the expense of improvement to someone else.”). Costs are “necessary” if incurred in response to a threat to human health or the environment. See 42 U.S.C. § 9607(a)(4) (liability attaches where “a release, or a threatened release ... causes the incurrence of response costs”); Carson Harbor Vill., Ltd. v. Unocal Corp. (Carson Harbor I), 270 F.3d 863, 871 (9th Cir.2001) (en banc) (noting that there is general agreement that “necessary” “requires that an actual and real threat to human health or the environment exist before initiating a response action”); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459-60 (1st Cir.1992) (affirming denial of CERCLA recovery where plaintiff *704 failed to establish that its costs were incurred in response to actual or threatened release); G.J. Leasing Co. v. Union Elec. Co. (G.J. Leasing I), 854 F.Supp. 539, 562 (S.D.Ill.1994) (“For response costs to be ‘necessary’, [sic] plaintiffs must establish that an actual or real public health threat exists prior to initiating a response action.”), aff'd, 54 F.3d 379 (7th Cir.1995). Conversely, costs incurred at a time when the plaintiff was unaware of any threat to human health or the environment are not “necessary.”

The Authority’s response in this case was not “necessary.” There is no evidence in the record demonstrating the need for a CERCLA-quality cleanup prior to constructing the runway. The first report, the soils management plan, was filed in May 1997-five months after demolition began. After requesting Camp Dresser to prepare an RI/FS and then passing it along to the State, the Authority nonetheless decided on its own to ignore the recommendations in the RI/FS and instead proceed with the construction as planned. After completion of the runway in December 1997, the Authority had Camp Dresser prepare a BRA. Camp Dresser did not provide the BRA to the Authority until April 1998. By the time the State approved the RI/FS and BRA in November 1998, the runway had been operational for almost a year. The timing of these events demonstrates that the cleanup costs could not have been incurred in response to a threat to human health or the environment, because the Authority did not have the relevant information at the time the costs were incurred.

The Authority responds that, at the very least, its 1990 EIS was a timely investigation into the need for remediation. Clearly, the EIS states that expanding the airport would require remediation at various locations, including the Site. However, the purpose behind the EIS, and hence its investigation, centered on the health and environmental effects of the airport expansion project as a whole, not around the health and environmental risks of the Site or any parcel as it then existed. 5 The EIS addressed whether the airport should be expanded in the first place, without regard for any specific project that would be required as part of the expansion. For example, the EIS’s proposed alternatives to airport expansion were to take no action, to develop a new site/new airport, to utilize alternative modes of transportation, or to increase service from other airports. The EIS does not say, and the Authority does not contend otherwise, that the Site as it existed in 1990 posed an environmental or public heath risk.

Even absent the timing issues, neither the RI/FS nor the BRA shows that the response was “necessary.” The RI/FS is irrelevant, since the Authority “approved a substantial departure” from it. The Authority cannot be heard now to say that the RI/FS is proof that the response costs were necessary. As for the BRA, the only potential threat identified was the presence of lead in the soil. To the extent that the BRA identified some risk of lead exposure to workers or on-site visitors, however, those conclusions were erroneous. First, the soils management plan (the only report approved prior to completion of the runway) had already stated that the lead concentrations at the Site were lower than what the federal Environmental Protection Agency (“EPA”) has calculated to be ac *705 ceptable risk levels for both residential and industrial use. Indeed, the mean total lead concentration in seven urban Louisville parks was nearly four times higher. Second, the BRA’s author admitted that the lead calculations in the BRA were “not appropriate,” and if she had to do it over again, she “would evaluate that in a different manner.” Had the authority calculated the lead concentration levels under the EPA’s CERCLA model, it would have found no unacceptable risk. Moreover, none of these reports indicated that the Site, as it sat when the Authority took control, needed remediation to protect the public health or the environment. They noted only potentially adverse impacts of runway construction on the Site.

Perhaps the most convincing evidence that the response costs were not “necessary” comes from the deposition testimony of Robert Brown, a representative of the Authority, that the areas not excavated as part of the runway construction were left untouched:

Q. Okay. With regard to the unexca-vated areas of those three parcels, what did you do with that land?

A. Actually, in most cases, nothing.

Q. Okay. You just left it as-is?

A. Yes.

Q. Okay. If it was exposed soil, you left it as [sic] exposed; if it had asphalt on it, you left it with asphalt on it, right?

A. Yes.

Q. Okay. Or whatever the cover happened to be, right?

A. Right.

A Camp Dresser manager also testified that the Authority did not remediate the soil deeper than necessary to complete runway construction. Had remediation truly been necessary, the Authority presumably would have (and certainly should have) performed a cleanup of the entire area.

In any event, the soils management plan makes clear' that any “concerns” • would have been rectified through normal runway construction and a prohibition against the use of ground and surface waters:

The ingestion of soil particles containing constituents of concern will be controlled by covering all [S]ite soils with runway or taxiway pavement, or with clean topsoil and vegetation. Surface water and groundwater ingestion pathways would be eliminated by [the Authority’s] prohibition of groundwater usage and by the prohibition of surface water bodies in the area of the [S]ite and west runway.

In other words, the “response costs” and the runway construction costs were one and the same. Therefore, allowing the Authority to recoup its “response costs” would be tantamount to a reimbursement of its. runway construction costs. “To require former occupants to assume liability for cleanup costs going beyond the level necessary to make the property safe for industrial use would be to provide an unwarranted windfall to the beneficiary of the cleanup.” City of Detroit v. Simon, 247 F.3d 619, 630 (6th Cir.2001). Likewise here, to require Defendants to assume liability for cleanup costs not in excess of normal construction or use costs would be to provide an unwarranted windfall to the Authority.

Contrary to the Authority’s position, we do not believe the district court erred in relying on the following passage from G.J. Leasing I:

A theoretical threat is not enough. For response costs to be “necessary”, [sic] plaintiffs must establish that an actual and real public health threat: exists prior to initiating a response action. To show that costs incurred were “necessary” under CERCLA, a party must show (1) that the costs were incurred in response to a threat to human health or *706 the environment, and (2) that the costs were necessary to address the threat. Also, CERCLA liability attaches only where a release or threatened release of a hazardous substance “causes the incur-rence of response costs.” In this case the evidence established that plaintiffs had other business reasons for undertaking site investigations and abatement actions. To the extent that these actions were taken for purposes other than responding to an actual and real public health threat, there is no CERCLA liability.

G.J. Leasing I, 854 F.Supp. at 562 (internal citations omitted). The Authority complains that the last two quoted sentences create an “ulterior motive” defense that is inconsistent with the statutory scheme. In support, the Authority cites the en banc opinion of the Ninth Circuit in Carson Harbor I. In that case, the court rejected the approach in G.J. Leasing I, stating that the “focus [is] not on whether a party has a business or other motive in cleaning up the property, but on whether there is a threat to human health or the environment and whether the response action is addressed to that threat.” Carson Harbor I, 270 F.3d at 872. Thus, “[t]he issue is not why the landowner decided to undertake the cleanup, but whether it was necessary. To hold otherwise would result in a disincentive for cleanup.” Id. (citing Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 840 F.2d 691, 695 (9th Cir.1988)).

We respectfully disagree. The passage from G.J. Leasing I merely fleshes out the statute’s limitation on liability. To recover, a plaintiff must show that it incurred costs in response to health or environmental threats. If a party would have incurred identical costs in the absence of any threat, then the presence of the threat cannot be said to have “eause[d] the incurrence of response costs.” 42 U.S.C. § 9607(a)(4). Thus, the court in G.J. Leasing I held that “[t]o the extent that the[] actions were taken for purposes other than responding to an actual and real public health threat, there is no CERCLA liability.” G.J. Leasing I, 854 F.Supp. at 562 (emphasis added). Such a conclusion cannot possibly provide a “disincentive for cleanup,” because the analysis is premised on the fact that the plaintiff would not have proceeded any differently had there been no threat of release. By definition, then, the plaintiff in that case needs no incentive to act.

This is not to say that parties are precluded from recovering all response costs incurred for self-serving motives. Parties often select a particular response based on commercial efficiency and convenience. To recover CERCLA damages in those cases, however, the parties must show that the threat to public health or the environment was the predicate for acting. Otherwise, businesses that happened to operate on contaminated property, yet took no additional measures in order to do so, would realize unearned fixed-cost advantages over their competitors. We do not believe that Congress, in enacting CERCLA, intended such a result.

Regardless, the district court did not rely on the Authority’s ulterior motive in denying liability. The district court cited G.J. Leasing I to support its conclusion that “no reasonable jury could conclude that prior to the construction process, the contamination on site posed an actual and real threat to the environment or to public health.” This conclusion demonstrates application of the proper legal standard and the only reasonable conclusion that could be drawn from this record.

2. “Consistent” with the NCP

While a conclusion that response costs were not “necessary” alone defeats the Authority’s CERCLA claims, we address the issue of whether the costs were “consistent” with the NCP in the alternative.

*707 A contamination cleanup is consistent with the NCP “if, taken as a whole, it is in ‘substantial compliance’ with 40 C.F.R. § 300.700(c)(5)-(6), and results in a ‘CERCLA-quality cleanup.’ ” Franklin County, 240 F.3d at 543 (quoting 40 C.F.R. § 300.700(c)(3)(i)). An immaterial or insubstantial deviation, however, will not result in a cleanup that is “not consistent” with the NCP. 40 C.F.R. § 300.700(c)(4). The relevant provisions of the NCP for purposes of this appeal concern the RI/FS and selection of remedy, § 300.700(c)(5)(viii), and community relations and the opportunity for public comment, § 300.700(c)(6).

Section 300.700(c)(5)(viii) states that compliance with section 300.430 is “potentially” required for a private CERCLA cause of action. Section 300.430(f)(l)(ii) states: .

The selection of a remedial action is a two-step process .... First, the lead agency [e.g., the State] ... identifies a preferred alternative and presents it to the public in a proposed plan, for review and comment. Second, the lead agency shall review the public comments and consult with the state ... in order to determine if the alternative remains the most appropriate remedial action for the site or site problem. The lead agency ... makes the final remedy selection decision, which shall be documented in the ROD.

We believe that, under the facts of this case, compliance with section 300.430 is required, but the Authority’s response fails each provision. First, the State did not present the preferred alternative to the public in a proposed plan, because the Authority never provided the State with the proposed plan in the first place. The only opportunity for public comment on the chosen alternative occurred years after construction on the Site was completed. Second, the State had no public comments to consider. As a general proposition, recovery should not be precluded where the lead agency could not consider public comments because there simply were none to consult. It seems a different matter, however, where there are no public comments because the “proposal” was already completed by the time the public had an opportunity to comment on it. Finally, and most importantly, the State did not make the final remedy selection decision, and there was no ROD. The State could not have made the final remedy selection decision, as the Authority completed the remedy eleven months before the State even approved the RI/FS and BRA. Moreover, the unrefuted testimony from the Authority’s environmental consultant was that the Authority had made an affirmative decision not to file a ROD. 6 We conclude that the Authority failed to comply with this provision of the NCP.

Also, the Authority’s preparation of the RI/FS fell short of substantial compliance with section 300.430. The purpose of the RI is “to ... develop[ ] and evaluate] effective remedial alternatives.” 40 C.F.R. § 300.430(d)(1). The purpose of the FS is “to ensure that appropriate remedial alternatives are developed and evaluated such that relevant information concerning the remedial action options can be presented to a decision-maker and an appropriate remedy selected.” 40 C.F.R. § 300.430(e)(1). Here again, neither of these purposes was fulfilled because the Authority had already implemented a remedy by the time the State approved the RI/FS. Finding this type of action to be in compliance with the NCP would reduce the NCP to a mere formality. Moreover, *708 the meaninglessness of the Authority’s RI/FS is further demonstrated by the Authority’s approval of a “substantial departure” from the RI/FS shortly after it was submitted for approval.

Third, the Authority did not provide an opportunity for public comment on the planned remediation. See 40 C.F.R. § 300.700(c)(6) (stating that “[pjrivate parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action”). Where relevant, these “community relations” provisions require, inter alia, that a party solicit concerns from the public and prepare a formal community relations plan, § 300.430(c)(2)(i)-(ii), that the party make available for public comment a report describing the preferred remedy along with alternatives, § 300.430(f)(2)-(3), and that the ROD be made available for public inspection, § 300.430(f)(6)(ii).

Once again, the Authority did none of these. The Authority did not solicit concerns from the public, prepare a formal community relations plan, or make available for public comment a report describing the preferred remedy along with alternatives. However defined, any meaningful opportunity for public comment must occur before the final remedial action is chosen, let alone implemented. See Carson Harbor Vill., Ltd. v. County of Los Angeles (Carson Harbor II), 433 F.3d 1260, 1266-67 (9th Cir.2006); Union Pac. R.R. Co. v. Reilly Indus., Inc., 215 F.3d 830, 837 (8th Cir.2000). Thus, the public meeting held in March 1999-at least two years after the remedy was chosen and one year after it was completed-cannot satisfy the public comment requirement. See Reilly, 215 F.3d at 837 (finding non-compliance with the NCP where, at the time of one public meeting, the “remedy was-for purposes of allowing meaningful public participation and comment-a foregone conclusion”); Pierson Sand & Gravel, Inc. v. Pierson Twp., No. 94-1472, 1996 WL 338624 at *3, 1996 U.S.App. LEXIS 16088, at *10 (6th Cir. June 18, 1996) (unpublished opinion) (holding that a public meeting “could have provided no ‘opportunity for public comment concerning the selection of the response action’ because the plan had already been ‘selected’ ” (quoting 40 C.F.R. § 300.700(c)(6))). And as already noted, the EIS did not address specific remediation plans or alternatives. Therefore, the public comment on the EIS in 1990 cannot satisfy the NCP.

The Authority points to public board meetings it held from 1994 until 1998 as having provided opportunities for public comment. However, the minutes from the meetings themselves show that the only items on any agenda related to the remediation of the Site involved approval of contractors to carry out the predetermined actions. 7 The purpose of the NCP’s community relations requirements is not to give the public an opportunity to comment on who will conduct the remediation; it is to comment on the underlying remediation itself. Only the former occurred during the Authority’s public board meetings, and thus the meetings are of no consequence to the Authority’s CERCLA claim. 8

*709 The Authority cites the State’s “substantial involvement” in the process as a substitute for deficient public participation. The Second Circuit has held that “[wjhere 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 v. Sills, 156 F.3d 416, 428 (2d Cir.1998); cf. NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 791 (7th Cir.2000) (finding NCP compliance where a state agency approved plaintiffs cleanup plan, monitored the remediation, and advised plaintiff when the remediation was complete). This Court has yet to decide whether this approach is sound, and we need not do so in this case, as the Authority cannot demonstrate compliance with the public comment requirements even under this standard. First, the State did not give “comprehensive input.” In fact, the record demonstrates that the State did little more than respond to the Authority’s filings. Second, the Authority cannot be said to have acted pursuant to the State’s instructions, because all work commenced prior to State approval. See Reilly, 215 F.3d at 837-38 (finding no Bedford Affiliates “exception” because remediation began before the state agency could make the ROD available for public inspection and copying). Third, the Authority never completed a BRA as the State required for risk-based management remedies, and explicitly rejected the State’s recommended actions as stated in the RI/FS. In short, the State’s participation in this case falls well short of the standards for vicarious public comment.

The Authority’s alternative response to the district court’s finding of non-compliance with the NCP is that the NCP is a loose guideline that is satisfied if the response “results in a CERCLA-quality cleanup.” 40 C.F.R. § 300.700(c)(3)(i). The Authority concludes that, because its response (arguably) resulted in a CERCLA-quality cleanup, it satisfied the NCP. The problem with this argument is that recovery under § 107(a) requires both “substantial compliance” with the NCP and a “CERCLA-quality cleanup.” Franklin County, 240 F.3d at 543; see also NutraSweet, 227 F.3d at 791; County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1512 (10th Cir.1991) (per curiam) (“Section 107 provides that a person is only liable for private party response costs to the extent that these costs were incurred ‘consistent with the national contingency plan.’ Proof of response costs incurred ‘consistent with’ the NCP is, therefore, an element of the prima facie private cost recovery action under CERCLA.” (citing 42 U.S.C. § 9607(a))). Thus, the fact that the Authority’s response may have resulted in a CERCLA-quality cleanup alone is insufficient.

We recognize that “immaterial, insubstantial” deviations that do “not affect the overall quality of the cleanup” will not bar recovery. Franklin County, 240 F.3d at 545. But wholesale failure to comply with the NCP’s remedy-selection process and community relations provisions-the very heart of the NCP-cannot reasonably be characterized as “immaterial” or “insubstantial.”

*710 3.Investigation costs

The Authority argues for the first time on appeal that it is entitled to recover its initial investigation costs even if its underlying CERCLA claim fails. See Pierson, 1996 WL 338624 at *5-6, 1996 U.S.App. LEXIS 16088, at *17-19; Donahey v. Bogle, 987 F.2d 1250, 1255-56 (6th Cir.1993), vacated on other grounds, 512 U.S. 1201, 114 S.Ct. 2668, 129 L.Ed.2d 805 (1994); Tinney, 933 F.2d at 1515. The Authority alleges that it spent more than $1 million investigating the environmental contamination at the Site. In order to recover initial investigation costs, a plaintiff must bring a separate claim for relief and present separate evidence in support thereof. Pierson, 1996 WL 338624, at *6, 1996 U.S.App. LEXIS 16088, at *20; Tinney, 933 F.2d at 1515.

Like the plaintiff in Pierson, the Authority “made no separate claim for [investigation costs] and failed to present any separate evidence or calculations of those costs.” Pierson, 1996 WL 338624, at *6, 1996 U.S.App. LEXIS 16088, at *20. “To accept [the plaintiffs] belated attempt to salvage preclosure costs out of an adverse decision below on their unitary allegation of injury would require a remand and further evidentiary findings-proceedings which undermine the just, speedy and economical benefits of the summary judgment procedure.” Tinney, 933 F.2d at 1515. Therefore, we reject the Authority’s attempt to recover initial investigation costs at this late stage.

4. Summary judgment appropriate

The Authority’s response costs were not necessary to protect against a threat to the public health or the environment. Nor did the Authority substantially comply with the regulations as required by the NCP. Finally, the Authority did not properly seek initial investigation costs. For these reasons, we conclude that the district court did not err in granting summary judgment to Defendants on the Authority’s CERC-LA claims.

B. Equitable Indemnification

The second issue is whether the district court erred in dismissing the Authority’s equitable indemnification claim under Federal Rule of Civil Procedure 12(b)(6).

We review the grant of a motion to dismiss under Rule 12(b)(6) de novo. Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir.2004). “The Court is required to construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle plaintiff to relief.” Id.

The district court dismissed the equitable indemnification claim on the ground that the Authority could not bring a claim in equity because CERCLA provided an adequate remedy at law. The Authority’s first response is that the equitable indemnification claim is merely an alternative theory of liability. The second response is that a CERCLA remedy may not be available as a matter of law. Specifically, the Authority notes that the Supreme Court’s recent decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), effectively precludes the Authority’s § 113 claim, see id. at 161, 125 S.Ct. 577 (holding that recovery under § 113 is available only to those parties that have already been sued themselves), and that, if remande