Santa Clarita Valley Water Agency v. Whittaker Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SANTA CLARITA VALLEY No. 22-55727
WATER AGENCY,
D.C. No.
Plaintiff-Appellee, 2:18-cv-06825-
SB-RAO
v.

WHITTAKER CORPORATION, OPINION

Defendant-Appellant,

and

DOES, 1-10, inclusive,

Defendant,

v.

KEYSOR-CENTURY
CORPORATION, a California
corporation; SAUGUS INDUSTRIAL
CENTER, LLC, a Delaware limited
liability company,

Third-party-defendants.
2 SCVWA V. WHITTAKER CORPORATION

SANTA CLARITA VALLEY Nos. 22-55754
WATER AGENCY, 22-56043

Plaintiff-Appellant, D.C. No.
2:18-cv-06825-
v. SB-RAO

WHITTAKER CORPORATION,

Defendant-Appellee,

and

DOES, 1-10, inclusive,

Defendant,

v.

KEYSOR-CENTURY
CORPORATION, a California
corporation; SAUGUS INDUSTRIAL
CENTER, LLC, a Delaware limited
liability company,

Third-party-defendants.

Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
 SCVWA V. WHITTAKER CORPORATION 3

Argued and Submitted January 11, 2024
Pasadena, California

Filed April 15, 2024

Before: Richard C. Tallman, Consuelo M. Callahan, and
Mark J. Bennett, Circuit Judges.

Opinion by Judge Tallman

SUMMARY *

Environmental Law

The panel affirmed in part and reversed in part the
district court’s judgment, after a combined jury and bench
trial, against Whittaker Corp. in an action brought under the
Comprehensive Environmental Response, Compensation,
and Liability Act, the Resource Conservation and Recovery
Act, and California state law by Santa Clarita Valley Water
Agency.
SCVWA, a public water agency, alleged that Whittaker
was responsible for contamination of groundwater that the
agency pumps from wells. The jury found Whittaker liable
for negligence, trespass, public nuisance, and private
nuisance, and awarded damages for past harm and
restoration or repair costs. The jury verdict was reduced to
$64,870,000, reflecting a 10% reduction due to SCVWA’s

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SCVWA V. WHITTAKER CORPORATION

fault for failure to mitigate damages and an offset for a
settlement between SCVWA and a third party. Following a
bench trial on the statutory claims, the district court denied
SCVWA relief under RCRA and apportioned costs under
CERCLA to SCVWA and Whittaker.
Affirming the jury award on Whittaker’s appeal, the
panel held that the district court did not abuse its discretion
by permitting SCVWA to assert restoration costs as a
measure of damages for the first time after the close of
discovery, SCVWA adequately established that
groundwater treatment facilities were an appropriate
measure of damages, and the jury award of restoration costs
was reasonable.
On SCVWA’s cross-appeal, the panel affirmed in part,
holding that the district court’s denial of injunctive relief
under RCRA, denial of prejudgment interest, and denial
attorneys' fees were proper. Reversing in part, the panel held
that the district court erred in denying SCVWA a finding of
liability against Whittaker for one category of incurred
response costs under CERCLA. The panel also held that the
district court erred by denying SCVWA declaratory relief
under CERCLA. The panel remanded for the district court
to amend its judgment.

COUNSEL

Jennifer L. Meeker (argued), Frederic A. Fudacz, and Byron
Gee, Nossaman LLP, Los Angeles, California; Daniel P.
Costa, Gurnee Mason Rushford Bonotto & Forestiere LLP,
Roseville, California; Patrick J. Richard and Ilse C. Scott,
Nossaman LLP, San Francisco, California; for Plaintiff-
Appellee.
 SCVWA V. WHITTAKER CORPORATION 5

Mark E. Elliott (argued) and Stephanie Amaru, Pillsbury
Winthrop Shaw Pittman LLP, Los Angeles, California;
Shelby L. Dyl and Michael A. Warley, Pillsbury Winthrop
Shaw Pittman LLP, Washington, D.C.; Fred Blum, Bassi
Edlin Huie & Blum LLP, San Francisco, California;
Christopher J. Dow, Edlin Gallagher Huie & Blum, San
Francisco, California; Thomas J. Salerno, Stinson LLP,
Phoenix, Arizona; Reynold L. Siemens, Covington &
Burling LLP, Los Angeles, California; for Defendant-
Appellant.

OPINION

TALLMAN, Circuit Judge:

Whittaker Corporation (“Whittaker”) and the Santa
Clarita Valley Water Agency (“SCVWA” or “Agency”)
cross-appeal a $68 million judgment in favor of the Agency
entered by the Honorable Stanley Blumenfeld, Jr., following
a combined 11-day jury and bench trial for state tort causes
of action and a finding of liability under the federal
Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq.
We have jurisdiction under 28 U.S.C. § 1291.
Whittaker challenges the jury award on a number of
grounds, but it does not appeal the finding of liability under
CERCLA. It argues that: (1) the district court abused its
discretion by permitting SCVWA to assert restoration costs
as a measure of damages for the first time after the close of
discovery, (2) SCVWA did not adequately establish that the
groundwater treatment facilities are an appropriate measure
of damages, and (3) the jury award of costs was not
6 SCVWA V. WHITTAKER CORPORATION

reasonable. After carefully reviewing the record, we hold
that none of Whittaker’s arguments are availing, and thus we
affirm the jury award against Whittaker.
SCVWA cross-appeals the district court’s denial of
(1) injunctive relief under the Resource Conservation and
Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., (2) a
finding of liability for certain incurred response costs under
CERCLA, (3) declaratory relief under CERCLA,
(4) prejudgment interest on a category of response costs, and
(5) attorneys’ fees. We hold that the district court’s denial
of relief under RCRA, prejudgment interest, and attorneys’
fees were proper, and thus we affirm. However, we hold that
the district court erred in denying SCVWA a finding of
liability against Whittaker for one category of incurred
response costs under CERCLA, and by denying SCVWA
declaratory relief under CERCLA. We reverse and remand
so the district court may amend its judgment to address these
two narrow issues.
I. FACTS
SCVWA is a public water agency in northern Los
Angeles County that was formed in 2018 when the
California legislature combined four entities that had
previously supplied water to the over 300,000 residents of
Santa Clarita Valley. SCVWA supplies water to its
customers primarily through a combination of local
groundwater pumped from wells and surface water
purchased from the State Water Project (which moves water
from Northern to Southern California by way of aqueducts).
The Agency pumps groundwater from two aquifers—a
shallow aquifer called the Alluvium, and a deeper, larger
aquifer underlying the Alluvium called the Saugus
Formation. SCVWA operates several supply wells: at issue
 SCVWA V. WHITTAKER CORPORATION 7

in this case are Saugus 1 (“S-1”), Saugus 2 (“S-2”), V-201,
and V-205 (collectively, “wells”). The wells all pump water
from the Saugus Formation. S-1 and S-2 were installed in
1988, V-201 in 1989, and V-205 in 2004.
In 1943, Whittaker’s predecessor landowner, Bermite
Powder Company (“Bermite”), began producing munitions
and explosives on a 996-acre site located in Santa Clarita,
California (“Site”). Bermite operated at the Site until 1967,
when Whittaker acquired the property and continued
producing munitions and explosives from 1967 until 1987.
The manufacturing operations of both companies at the Site
required the extensive use of a variety of toxic chemicals and
solvents. The chemicals included perchlorate and the
volatile organic compounds (“VOC”) perchloroethylene
(“PCE”) and trichloroethylene (“TCE”). Perchlorate, PCE,
and TCE are hazardous substances.
Both companies disposed of large volumes of
perchlorate, PCE, and TCE into the ground through
improper waste disposal practices such as dumping the
chemicals onto the ground and burying them under the
ground. Hazardous waste has been found in the soil and
groundwater beneath the Site. Investigations of the
contamination began in the 1990s and found that perchlorate
and VOCs were released in the same areas across the Site
and generally followed the same pathway as groundwater.
These hazardous substances from the Site have migrated
underground into the Saugus Formation and travelled offsite
through groundwater pathways.
Perchlorate and VOCs have important differences that
characterize their migratory pathways through groundwater.
Perchlorate is an anion, which means that it dissolves in
water. Plumes of perchlorate will migrate through
8 SCVWA V. WHITTAKER CORPORATION

groundwater at roughly the same speed as the water itself.
VOCs, on the other hand, are hydrophobic, meaning that
they tend to stick to organic matter such as soil rather than
dissolve in water. This results in plumes of VOCs migrating
through groundwater at much slower speeds than
perchlorate. Because of these characteristics, to date,
perchlorate has migrated much further and faster through the
Saugus Formation than VOCs.
By way of background, there are a number of treatment
options that can make contaminated water potable. It can be
treated with a filtration system to remove the contaminants.
Contaminated water can be blended with clean water to
dilute the contaminants to levels safe for human
consumption or discharge into natural waterways. Or a
combination of treatment and blending can be utilized to
remove contamination. Additionally, containment wells can
be used to pump contaminated water out of the aquifer for
treatment and disposal, which serves to reduce the migration
of the contaminants downgradient.
A. Wells S-1 & S-2
Perchlorate was first discovered in groundwater
extracted from S-1 and S-2 in 1997. The Agency’s
predecessor informed the California Division of Drinking
Water (“DDW”) of the contamination and took the wells out
of service. DDW allowed the wells to reopen following
installation of a perchlorate treatment facility known as the
Saugus Perchlorate Treatment Facility (“SPTF”). Pursuant
to a 2007 settlement agreement between Whittaker and
SCVWA, Whittaker was required to cover the cost of the
SPTF, as well as pay for replacement water to compensate
SCVWA for the lost pumping capacity.
 SCVWA V. WHITTAKER CORPORATION 9

The SPTF treats the water at both S-1 and S-2 for
perchlorate; however, during the installation of the treatment
facility, VOCs were detected in the wells. Because of the
presence of the hazardous contaminants, DDW classified the
Saugus Formation as an “extremely impaired” groundwater
source, which triggered heightened permitting obligations.
One of these obligations requires SCVWA to deliver water
from S-1 and S-2 with a non-detect level (“NDL”) of VOCs;
the NDL is one-tenth of the maximum contaminant level
(“MCL”) established for drinking water. For SCVWA to
meet this obligation it must blend the water treated at the
SPTF with contaminant-free water to the point that VOCs
are not detected. SCVWA purchases water from the State
Water Project to blend with the treated water until it meets
the NDL criteria for VOCs. In 2010, following the
completion of the treatment system, SCVWA regained its
drinking water permit from DDW and resumed using wells
S-1 and S-2 to supply potable water to its customers.
B. Well V-201
In 2010, perchlorate was found in groundwater extracted
from V-201 and the well was taken out of service. In 2015,
Whittaker and SCVWA entered into an agreement, separate
from the 2007 S-1/S-2 settlement agreement, to address the
V-201 contamination issue. The new agreement required
Whittaker to create a wellhead treatment facility that would
“(1) contain further transport of perchlorate to downgradient
wells; (2) restore potable water supply from V-201 with a
Treatment System design capacity of up to 2400 [gallons per
minute] . . . and (3) meet all applicable California regulatory
standards.”
In 2017—seven years after the contaminants were first
detected in V-201—the perchlorate wellhead treatment
10 SCVWA V. WHITTAKER CORPORATION

facility came online. However, DDW has yet to reissue a
drinking water permit for this well. Instead, the well is
operating as a containment well; it pumps contaminated
water from the aquifer, treats it, then discharges it into the
Santa Clara River pursuant to a National Pollutant Discharge
Elimination System (“NPDES”) permit issued by the
California Water Resources Control Board. SCVWA must
purchase water from the State Water Project to blend with
the treated water in order to be in compliance with the
NPDES permit.
SCVWA has not been able to deliver water to its
customers from V-201 since perchlorate was first detected
in 2010 despite the perchlorate treatment system being
operational since 2017. Because V-201 has been out of
service, SCVWA has had to continually purchase
replacement water from the State Water Project to
adequately supply its customers. From 2012 to 2017,
Whittaker covered the cost of replacement water, but from
2017 to present, SCVWA has been covering the cost.
C. Well V-205
In 2012, perchlorate was discovered in V-205; although
the perchlorate levels were below the MCL, it was
immediately taken offline. V-205 has no treatment facilities
on it and has not returned to service since it was taken
offline. SCVWA purchases replacement water from the
State Water Project to make up for the lost well capacity
from V-205. In 2018, perchlorate was detected at V-205 at
levels that exceed the MCL. It was this finding that triggered
SCVWA’s filing of the current lawsuit against Whittaker in
August 2018.
 SCVWA V. WHITTAKER CORPORATION 11

II. PRIOR PROCEEDINGS
SCVWA’s lawsuit against Whittaker alleged multiple
state and federal law violations, and sought injunctive relief
in addition to compensatory and punitive damages.
Following the initiation of the lawsuit, Whittaker filed a
third-party complaint against Keysor-Century Corporation
(“Keysor”) and Saugus Industrial Center LLC (“SIC”).
Whittaker asserted that Keysor was the former owner of a
property west of the Site where it operated a resin compound
manufacturing facility and allegedly utilized over 50 million
pounds of VOCs in its annual operations. Whittaker further
alleged that SIC, as the purchaser of the Keysor property,
knew or should have known of the contamination issues.
SIC and SCVWA subsequently entered into a settlement
agreement. SIC agreed to pay SCVWA $2.9 million to settle
all VOC issues between the parties, contingent upon the
court granting a Motion for Good Faith Settlement. The
settlement was also conditioned on the court dismissing
Whittaker’s claims against SIC and dismissing SIC from the
action—both with prejudice. SCVWA and SIC agreed to
release one another from liability in the action after payment
was received. In approving the settlement, the district court
determined that the settlement would offset any judgment
against Whittaker on a pro tanto basis.
A. Jury Trial
The common law claims for negligence, trespass, public
nuisance, and private nuisance were tried before the jury in
an 11-day trial. The jury found Whittaker liable under all of
the common law theories and awarded damages for past
harm of $7 million, and restoration or repair costs of $68.3
12 SCVWA V. WHITTAKER CORPORATION

million.1 It also found that SCVWA, SIC, and Whittaker
were all negligent, apportioning 10% of fault to SCVWA for
failure to mitigate damages, 30% of fault to SIC, and 60% of
fault to Whittaker. The jury verdict was reduced to
$64,870,000, which reflects a 10% reduction due to
SCVWA’s fault, and a reduction of $2.9 million reflecting
the pro tanto offset from the SIC settlement.
After the jury returned its verdict in SCVWA’s favor, the
Agency moved for attorneys’ fees under California’s private
attorney general statute, Cal. Civ. Proc. Code § 1021.5. The
district court denied the motion, holding that the plain
language of the statute bars the award of fees to a public
agency on these facts.
B. District Court Findings of Fact and Conclusions
of Law
Following the jury trial, the district court issued its
Findings of Fact and Conclusions of Law (“FF/CL”) as to
the statutory claims tried to the bench.
The district court denied SCVWA relief under RCRA
because the risk of harm from the migration of VOCs was
not “imminent and substantial.” The court held that
substantial remediation, containment, monitoring, and
extensive government oversight of the cleanup mitigated any
imminent risk posed by the VOCs.

1
Following post-trial motions, the district court vacated the jury’s
finding of liability as to SCVWA’s trespass claim because SCVWA did
not establish that it owned an interest in the land. However, it held that,
irrespective of the merits of Whittaker’s arguments, “the damages award
is independently supported by each claim,” and therefore “it would not
seem to affect the amount of the ultimate judgment.”
 SCVWA V. WHITTAKER CORPORATION 13

Next, the district court held that SCVWA incurred
$675,000 in costs for investigation, permitting, and design
(“IPD”) under CERCLA; it apportioned 10% to SCVWA
and the balance to Whittaker, consistent with the jury’s
finding that 10% of SCVWA’s damages resulted from its
own failure to mitigate. However, it found that SCVWA
could not establish CERCLA liability against Whittaker for
its blend water costs and replacement water costs primarily
because it would be duplicative of the jury award, and thus
precluded by CERCLA’s bar on double recovery, 42 U.S.C.
§ 9614(b). The court further supported its finding that the
Agency is not entitled to a finding of liability against
Whittaker for its replacement water costs because it did not
establish that it substantially complied with the National
Contingency Plan (“NCP”) under federal law. It made no
explicit finding as to the Agency’s compliance with the NCP
for its blend water costs. The district court also held that
SCVWA was not entitled to declaratory relief under
CERCLA, 42 U.S.C. § 9613(g)(2), for its blend and
replacement water costs because it failed to establish
CERCLA liability for those costs. It denied declaratory
relief for IPD costs because it concluded that it would be
duplicative of the jury award—and thus barred by 42 U.S.C.
§ 9614(b).
Finally, the district court denied SCVWA prejudgment
interest on its replacement water costs because it could not
establish that it had been harmed by the deprivation, as it
passed the additional costs on to its customers. However,
the district court granted SCVWA prejudgment interest of
$363,318.09 for V-201 blend water costs that were incurred
to be in compliance with the NPDES permit, because those
costs could not be recouped.
14 SCVWA V. WHITTAKER CORPORATION

The final judgment awarded SCVWA: (1) $64,870,000
from the jury award ($75,300,000 less 10% due to
SCVWA’s apportioned fault, and less $2,900,000 for the pro
tanto offset from the SIC settlement); (2) $607,500 from the
FF/CL for the IPD costs under CERCLA; (3) $363,318.09 in
prejudgment interest for the negligence and nuisance claims;
(4) $2,575,249.74 in prejudgment interest for the post-
verdict period (Dec. 3, 2021, to June 27, 2022); and
(5) $119,375.65 in taxed costs, for a total judgment entered
of $68,535,443.48.
III. DISCUSSION
Whittaker raises three issues on appeal and SCVWA
raises five. We address each in turn.
A. Rule 26 Disclosures
Whittaker challenges the district court’s decision to
allow SCVWA to assert restoration costs as part of its theory
of damages after the close of discovery. It argues that the
district court abused its discretion by denying Whittaker’s
Motion in Limine regarding exclusion of evidence
supporting the restoration costs (i.e. costs to treat the
contaminated water) as a violation of Federal Rule of Civil
Procedure 26. Evidentiary rulings are reviewed for abuse of
discretion. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773
(9th Cir. 2002) (“[W]e must affirm the district court unless
its evidentiary ruling was manifestly erroneous and
prejudicial.”) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136,
142 (1997)). “This court reviews de novo a district court’s
interpretation of the Federal Rules of Civil Procedure.” Cal.
Scents v. Surco Prods., Inc., 406 F.3d 1102, 1105 (9th Cir.
2005) (citing Atchison, Topeka & Santa Fe Ry. Co. v.
Hercules Inc., 146 F.3d 1071, 1073 (9th Cir. 1998)).
 SCVWA V. WHITTAKER CORPORATION 15

Federal Rule of Civil Procedure 26 requires a party to
disclose “a computation of each category of damages
claimed by the disclosing party . . . .” Fed. R. Civ. P.
26(a)(1)(A)(iii). If a party fails to disclose information
required by Rule 26 then exclusion of the evidence under
Federal Rule of Civil Procedure 37 is proper “unless the
failure to disclose was substantially justified or harmless.”
Hoffman v. Constr. Protective Servs. Inc., 541 F.3d 1175,
1179 (9th Cir. 2008) (citing Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)).
Exclusion of evidence under Rule 37 for failure to disclose
pursuant to Rule 26 is a tool that courts can use to sanction
parties for failing to make discoverable evidence available
or for failing to cooperate during discovery. Fed. R. Civ. P.
37(b)(2)(A)(ii), (c)(1); Fed. R. Civ. P. 26(a); Estakhrian v.
Obenstine, 233 F. Supp. 3d 824, 837 n.11 (C.D. Cal. 2017).
Whittaker does not contend that SCVWA failed to
disclose the computation of damages required by Rule 26,
instead it asserts that SCVWA committed error by not
disclosing the legal theory that entitled it to those damages.
The district court determined that Whittaker’s argument fails
because legal theories are not subject to Rule 26 disclosures,
and SCVWA timely disclosed all of the supporting evidence
for the damages that it sought. See Athena Cosms., Inc. v.
AMN Distrib. Inc., No. 2:20-cv-05526-SVW-SHK, 2022
WL 4596549, at *6 (C.D. Cal. Aug. 16, 2022) (holding that
Rule 26 requires the disclosure of evidence but not the
disclosure of a legal theory).
Whether Rule 26 requires the disclosure of legal theories
is an issue of first impression for us. District courts within
our circuit have consistently held that it does not.
16 SCVWA V. WHITTAKER CORPORATION

In Athena Cosmetics, which concerned counterfeit
trademark infringement, the defendant argued that the
plaintiff violated Rule 26 because it did not timely disclose
a key legal theory or identify the evidence to support it. 2022
WL 4596549, at *6. The Central District of California held
“Rule 26 requires the identification of certain evidence and
its disclosure to the opposing party, it does not require a
party to disclose its legal theory to the opposition . . . .” Id.
It further noted that, contrary to the defendant’s contention,
the evidence had been disclosed as “key evidence from the
very inception of this case.” Id.
In PCT International Inc. v. Holland Electronics LLC,
the defendant in a patent infringement case argued that the
plaintiff could not pursue an “indirect infringement theory”
because it failed to fully disclose that theory during
discovery. No. CV-12-01797-PHX-JAT, 2015 WL 875200,
at *5 (D. Ariz. March 2, 2015). The District of Arizona held
that Rule 37(c)(1) “concerns the exclusion of only untimely
disclosed evidence,” and does not bar the introduction of a
previously undisclosed legal theory. Id.
In Estakhrian, when the defendant attempted to bar the
plaintiff from asserting two new legal theories after the close
of discovery, the Central District of California denied its
request because Rule 37 is a discovery rule; “it is not a
sanction for the failure to timely disclose a legal theory.”
233 F. Supp. 3d at 837 n.11 (citations omitted).
We agree and now hold that Rule 26 does not require
disclosure of legal theories. Rule 26 is a discovery rule
intended to ensure that the parties have access to the
information that will be used to support a claim or defense.
In the operative complaint, SCVWA explicitly requested
“payment of all necessary costs of response, removal and
 SCVWA V. WHITTAKER CORPORATION 17

remedial action costs, [and] costs of abatement and liability
incurred by [SCVWA] as a result of any release or
threatened release of hazardous substances at the Whittaker
Site . . . .” Whittaker had access to the computation of
damages sought by SCVWA, as required by Rule
26(a)(1)(A)(iii). Whittaker equally had access to the
applicable law and facts and could have mounted a defense
based upon the damages sought and the evidence that
supported the computation of damages. As the district court
aptly stated: Whittaker “has not shown that [SCVWA] is
responsible for failing to alert the defense to a possible
defense theory arising under California law.” We agree, and
find the district court did not abuse its discretion by
permitting SCVWA to assert a legal theory at trial that it did
not include in its Rule 26 disclosures.
B. Groundwater Treatment Facilities
Whittaker next challenges the jury’s award of restoration
costs on the basis that SCVWA did not properly establish the
original condition of the property, which Whittaker argues
makes the groundwater treatment facilities an inappropriate
measure of damages. Whittaker contends that without
establishing the original condition of the property, the award
of damages to build VOC treatment facilities would put
SCVWA in a better position than it had been prior to injury.
The district court denied Whittaker’s motion for Renewed
Judgment as a Matter of Law on the issue of whether
groundwater treatment facilities are a proper measure of
damages, finding that the jury awarded damages to “repair
the harm caused by the groundwater contamination by
removing the contaminants prior to delivering drinking
water to the public—and to that extent, . . . ‘compensate the
injured party for the loss sustained.’”
18 SCVWA V. WHITTAKER CORPORATION

“Whether a plaintiff is entitled to a particular measure of
damages is a question of law subject to de novo review.”
Rony v. Costa, 148 Cal. Rptr. 3d 642, 646 (Ct. App. 2012)
(internal quotations and citations omitted); see R.B.
Matthews, Inc. v. Transamerica Transp. Servs., Inc., 945
F.2d 269, 272 (9th Cir. 1991). We hold that the district court
correctly applied California tort law in determining that
groundwater treatment facilities are an appropriate measure
of damages, and thus affirm.
Under California’s general tort damages law, the proper
measure of damages “is the amount which will compensate
for all the detriment proximately caused thereby, whether it
could have been anticipated or not.” Cal. Civ. Code § 3333;
Heninger v. Dunn, 162 Cal. Rptr. 104, 106 (Ct. App. 1980).
California courts recognize that “there is no fixed, inflexible
rule for determining the measure of damages for injury to, or
destruction of, property, and whatever formula is most
appropriate in the particular case will be adopted . . . .”
Mozzetti v. City of Brisbane, 136 Cal. Rptr. 751, 757 (Ct.
App. 1977) (cleaned up); Heninger, 162 Cal. Rptr. at 106–
07; Armitage v. Decker, 267 Cal. Rptr. 399, 409 (Ct. App.
1990).
California law holds that plaintiffs in tort actions should
not get damages in an amount that would place them “in a
better position than [they] would have been had the wrong
not been done.” Safeco Ins. Co. of Am. v. J & D Painting,
21 Cal. Rptr. 2d 903, 905 (Ct. App. 1993) (citations
omitted); see also Mozzetti, 136 Cal. Rptr. at 757 (“The
primary object of an award of damages in a civil action, and
the fundamental principle on which it is based, are just
compensation or indemnity for the loss or injury sustained
by the complainant, and no more.”) (emphases and citations
omitted).
 SCVWA V. WHITTAKER CORPORATION 19

Whittaker maintains that SCVWA cannot recover
restoration costs for VOC treatment facilities without
proving the original condition of the property, otherwise it
will be put in a better position than it had been pre-harm.
Curiously though, it conceded during its closing argument to
the jury that costs to install treatment facilities to remove
perchlorate are an appropriate measure of damages because
it admitted that the perchlorate contamination came from the
Site. It follows, that if the fact finder similarly determines
that the VOC contamination came from the Site, then
damages in an amount to install VOC treatment facilities
would be an appropriate measure of damages. The district
court noted as much: “In closing argument, [Whittaker]
seemed to agree that water treatment was a proper measure
of damages and invited the jury to return a verdict against
it—just not in the scope and amount of damages sought by
[SCVWA].”
Furthermore, once SCVWA produced evidence
regarding restoration costs, the burden shifted to Whittaker
to demonstrate that the costs were inappropriate. See
Armitage, 267 Cal. Rptr. at 410. In Armitage, the California
Court of Appeal held that:

Where a plaintiff establishes damages by
showing depreciation in the value of real
property, courts have held defendants to the
burden of coming forward with proof that
cost of restoration would be less. It follows
that when a plaintiff proves damages by
showing the cost of repairs it should be
incumbent on the defendant to introduce
20 SCVWA V. WHITTAKER CORPORATION

evidence that the repair costs exceed the
value of the property.

Id. (internal citations omitted). Whittaker did not meet this
evidentiary burden.
SCVWA produced evidence showing the cost to restore
the property to its condition absent the VOC contamination.
Therefore, under the reasoning of Armitage, Whittaker could
have rebutted the evidence of restoration costs by producing
evidence that awarding SCVWA damages in that amount
would put it in a better position than it had been prior to the
injury—it failed to do so.
The jury determined that SCVWA adequately proved
that Whittaker negligently contaminated the groundwater,
and that its negligence was a substantial factor in causing
SCVWA harm. The jury then awarded SCVWA damages in
an amount to “reasonably compensate [SCVWA] for the
harm” caused by both VOC and perchlorate contamination.
Whittaker did not carry its burden of proving that restoration
damages to build the treatment facilities would place
SCVWA in a better position than it had been prior to injury.
Therefore, we hold that restoration costs in the form of VOC
treatment facilities are a proper measure of damages to
“compensate [SCVWA] for all the detriment proximately
caused” by Whittaker’s contamination. Cal. Civ. Code
§ 3333. Accordingly, we affirm.
C. Reasonableness of the Jury Verdict
Finally, Whittaker argues that if the restoration costs are
not vacated, they should be reduced because they are
unreasonable in light of the limited harm that the VOC
contamination has had on drinking water. The district court
disagreed, holding that there was sufficient evidence for a
 SCVWA V. WHITTAKER CORPORATION 21

reasonable fact finder to support the award based on
(1) testimony about DDW withholding the drinking water
permit for V-201 due to contamination, and (2) the fact that
water pumped from the Saugus Formation must meet
especially stringent permitting standards due to the source
being extremely impaired. We agree, and affirm the
amounts awarded.
A jury verdict will be upheld under the substantial
evidence standard if there is “such reasonable evidence as
reasonable minds might accept as adequate to support a
conclusion even if it is possible to draw two inconsistent
conclusions from the evidence.” In re Exxon Valdez, 270
F.3d 1215, 1237 (9th Cir. 2001) (quoting Lambert v.
Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999) (en banc)).
“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions . . . [and] all justifiable inferences are to be
drawn in [the prevailing party’s] favor.” Id. (alterations in
original) (quoting Lytle v. Household Mfg., Inc., 494 U.S.
545, 554–55 (1990)).
Whittaker maintains that the jury award cannot stand
because only a small portion of the award, about $19 million,
is required to install a perchlorate treatment facility at V-205.
It argues that the roughly $40 million award to install VOC
treatment facilities on all four wells is unreasonable given
the fact that VOC levels at the four wells have not exceeded
the MCL and SCVWA continues to serve water even with
“trace amounts” of VOCs in it.
There is sufficient evidence to uphold the jury verdict
based on testimony that DDW is withholding the issuance of
a drinking water permit for V-201 due to VOC
contamination. SCVWA’s Chief Operating Officer,
22 SCVWA V. WHITTAKER CORPORATION

Abercrombie, testified that DDW has still not issued a
drinking water permit for V-201 despite the perchlorate
treatment facility becoming operational in 2017. He stated
on cross-examination that “we have had discussions with the
Division of Drinking Water, and I know we asked, if we
were to put in treatment, would we get a permit? And the
answer was, you’d get it pretty quick.” SCVWA’s Director
of Operations and Maintenance, Alvord, also testified that
SCVWA believes DDW will expedite the permitting process
if VOC treatment is implemented, stating: “We have a
problem with getting a permit for V-201 because we have
VOCs in V-201.” The jury could have discounted the
credibility of SCVWA’s testimonial evidence; however, it
was not required to do so. In re Exxon Valdez, 270 F.3d at
1237. Based on the proffered testimony, if deemed credible,
the jury was justified in finding that SCVWA’s drinking
water permit for V-201 was being held up due to VOC
contamination.
Further, there is substantial evidence that DDW requires
water pumped from the Saugus Formation to meet the NDL
for VOCs, rather than the MCL, because the Saugus
Formation is a “highly impaired water source.” To achieve
the NDL for VOCs in S-1 and S-2, SCVWA must purchase
VOC-free water from the State Water Project to blend with
the water treated at the SPTF before serving it to customers.
SCVWA also purchases water from the State Water Project
to blend with the treated water from V-201 in order to meet
the NPDES permit requirements to discharge the water into
the Santa Clara River.
Although Whittaker relies on SCVWA’s water
consistently remaining below the MCL to argue that there is
no harm, it overlooks SCVWA’s evidence that the water
does not always meet DDW’s operational goals due to VOC
 SCVWA V. WHITTAKER CORPORATION 23

contamination. And even though DDW will not necessarily
pull a drinking water permit for sporadic violations of its
operational goals, it is incumbent on a permit holder to meet
permit requirements. As the district court correctly noted,
Whittaker has produced no authority requiring a regulatory
order or illness to occur prior to obtaining restoration
damages. The jury credited SCVWA’s testimonial evidence
that the standard as to VOC limits for water extracted from
the Saugus Formation is the NDL, not the MCL, and
awarded damages to address the contamination accordingly.
The jury is entitled to weigh the evidence presented,
make credibility determinations, and draw legitimate
inferences from the facts. In re Exxon Valdez, 270 F.3d at
1237; see Gilbrook v. City of Westminster, 177 F.3d 839, 856
(9th Cir. 1999) (“We may not assess the credibility of
witnesses in determining whether substantial evidence exists
to support the jury’s verdict.”) (citation omitted). “A trial
determination has a great deal of force, whichever way it
goes.” In re Exxon Valdez, 270 F.3d at 1237. Here, there is
substantial evidence to support the jury verdict because
reasonable minds could conclude from the evidence
presented that VOC treatment facilities would expedite
drinking water permits and because DDW requires VOC
levels to meet the NDL rather than the MCL. Accordingly,
we affirm the jury verdict.
D. Resource Conservation and Recovery Act
SCVWA seeks “injunctive relief under RCRA to require
Whittaker to install groundwater monitoring wells off-site,
to investigate the extent of perchlorate and VOC plumes
migrating from Whittaker’s site, and to delineate the extent
of the plumes.” The district court denied injunctive relief
because it held that significant remediation efforts
24 SCVWA V. WHITTAKER CORPORATION

supervised by regulatory agencies mitigated any imminent
and substantial endangerment. “In reviewing a judgment
following a bench trial, this court reviews the district court’s
findings of fact for clear error and its legal conclusions de
novo.” Price v. U.S. Navy, 39 F.3d 1011, 1021 (9th Cir.
1994) (citation omitted). Because the district court correctly
applied the legal standard set forth by RCRA and Ninth
Circuit case law in reaching its finding that any continued
harm from Whittaker’s contamination is not substantial and
imminent, we affirm the RCRA determination.
Under RCRA’s citizen suit provision, 42 U.S.C.
§ 6972(a)(1)(B), injunctive relief is available if a plaintiff
shows that the defendant is:

[(1)] any person . . . including any past or
present generator . . . or past or present owner
or operator of a treatment, storage, or
disposal facility, [(2)] who has contributed or
who is contributing to the past or present
handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste,
[(3)] which may present an imminent and
substantial endangerment to health or the
environment.

42 U.S.C. § 6972(a)(1)(B); see Ctr. for Cmty. Action & Env’t
Just. v. BNSF Ry. Co., 764 F.3d 1019, 1023 (9th Cir. 2014).
Only the third element—imminent and substantial
endangerment—is at issue here.
“An endangerment can only be ‘imminent’ if it
‘threaten[s] to occur immediately,’ and the reference to
waste which ‘may present’ imminent harm quite clearly
excludes waste that no longer presents such a danger.”
 SCVWA V. WHITTAKER CORPORATION 25

Meghrig v. KFC W., Inc., 516 U.S. 479, 485–86 (1996)
(alteration in original) (internal citation omitted). For the
endangerment to be substantial, “there must be some
necessity for the action.” U.S. Navy, 39 F.3d at 1019. The
imminent and substantial endangerment element should be
construed broadly to allow for affirmative equitable relief.
See Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d
1013, 1020 (10th Cir. 2007); Cmty. Ass’n for Restoration of
the Env’t, Inc. v. Cow Palace, LLC, 80 F. Supp. 3d 1180,
1228 (E.D. Wash. 2015). “A finding of ‘imminency’ does
not require a showing that actual harm will occur
immediately so long as the risk of threatened harm is present
. . . .” U.S. Navy, 39 F.3d at 1019 (citing Env’t Def. Fund,
Inc. v. Env’t Prot. Agency, 465 F.2d 528, 535 (D.C. Cir.
1972)). “Imminence refers ‘to the nature of the threat rather
than identification of the time when the endangerment
initially arose.’” Id. (quoting United States v. Price, 688
F.2d 204, 213 (3d Cir. 1982)). The threat of harm must be
“present now, although the impact of the threat may not be
felt until later.” Id.
We held in U.S. Navy that extensive government
involvement with the cleanup operations of contaminated
soil at a former United States Navy junkyard—repurposed
into a residential neighborhood—mitigated any risk of
imminent endangerment. Id. at 1012, 1018–20. There, we
found the plaintiff’s contention that she would need to
replace her home’s foundation at some point in the future
insufficient to establish imminency because it was
speculative whether there were hazardous contaminants
beneath the foundation, and when, if ever, the foundation
would need to be replaced. Id. at 1019–20.
Similarly, here, there has been extensive government
oversight in the cleanup of the Site, alleviating the threat of
26 SCVWA V. WHITTAKER CORPORATION

imminent and substantial endangerment. In 2002 the
California Department of Toxic Substance Control
(“DTSC”) entered a remedial action order against Whittaker,
finding that its contamination at the Site created an imminent
and substantial endangerment to the public health or welfare
or the environment. The order requires Whittaker to seek
review and approval from DTSC for all remedial actions at
the Site. Pursuant to that order, Whittaker has engaged in
removal of VOCs from the subsurface soil and has installed
over two hundred monitoring wells on the property and
offsite to investigate groundwater contamination. In May
2021, DTSC approved the completion of remediation at
Operable Unit 7 (“OU7”), which encompassed the
groundwater contamination from the Site, indicating that
prior harms had been satisfactorily remediated. See
Meghrig, 516 U.S. at 485–86.
The district court held that any threat posed by
Whittaker’s contamination is not imminent and substantial
because DTSC has been extensively involved in cleanup at
the Site, Whittaker has engaged in remedial actions, and it
has installed over two hundred monitoring wells. In short,
there is no “necessity for . . . action” in excess of the actions
already taken and those that are currently ongoing. U.S.
Navy, 39 F.3d at 1019. We agree, and, accordingly, we
affirm the district court’s ruling on this issue.
E. CERCLA Liability
SCVWA seeks a finding of liability against Whittaker
under CERCLA for its incurred response costs. The district
court held that Whittaker was not liable for SCVWA’s blend
water costs and replacement water costs, but it held
Whittaker liable for SCVWA’s third category of response
costs: investigation, permitting, and design (“IPD”).
 SCVWA V. WHITTAKER CORPORATION 27

SCVWA challenges the district court’s denial of a finding of
liability for its incurred blend and replacement water costs.
The district court’s interpretation of CERCLA is reviewed
de novo. California v. Montrose Chem. Corp. of Cal., 104
F.3d 1507, 1512 (9th Cir. 1997) (citing Idaho v. Howmet
Turbine Component Co., 814 F.2d 1376, 1378 (9th Cir.
1987)).
We begin with a brief recitation of CERLCA liability. In
enacting CERCLA, “Congress created a private claim for
certain ‘response costs’ against ‘various types of persons
who contributed to the dumping of hazardous waste at a
site.’” 3550 Stevens Creek Assocs. v. Barclays Bank of Cal.,
915 F.2d 1355, 1375 (9th Cir. 1990) (quoting Ascon Props.,
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989));
42 U.S.C. § 9607(a). For a private party to recover response
costs pursuant to CERCLA it must:

establish that (1) the site on which the
hazardous substances are contained is a
“facility” under . . . 42 U.S.C. § 9601(9); (2) a
“release” or “threatened release” of any
“hazardous substance” from the facility has
occurred, 42 U.S.C. § 9607(a)(4); (3) such
“release” or “threatened release” has caused
the plaintiff to incur response costs that were
“necessary” and “consistent with the national
contingency plan,” 42 U.S.C. §§ 9607(a)(4)
and (a)(4)(B); and (4) the defendant is within
one of four classes of persons subject to the
liability provisions of Section 107(a).

Id. at 1358 (footnote omitted) (citing Ascon Props., Inc, 866
F.2d at 1152).
28 SCVWA V. WHITTAKER CORPORATION

The parties agree that SCVWA has satisfied at least three
of these elements. The Site is a facility under 42 U.S.C.
§ 9601(9); perchlorate, PCE, and TCE are hazardous
substances that were released at the Site; and Whittaker is
subject to the liability provisions because it “owned or
operated” the Site when hazardous chemicals were released.
42 U.S.C. § 9607(a)(2). However, the district court denied
granting SCVWA a finding of liability for its incurred blend
and replacement water costs under § 9607(a) primarily
because it held that such a finding is prohibited by
CERCLA’s bar on double recovery, 42 U.S.C. § 9614(b).
The district court further held that SCVWA is not entitled to
a finding of liability for its replacement water costs because
it did not satisfy part of the third element of CERCLA
liability: substantial compliance with the NCP, as required
by § 9607(a)(4)(B). However, it made no such finding for
SCVWA’s incurred blend water costs, relying solely on the
double recovery bar to hold that the Agency is not entitled to
a finding of liability for those costs.
We will address each reason for the district court’s denial
of liability separately.
1. CERCLA’s Bar on Double Recovery, 42 U.S.C.
§ 9614(b)
CERCLA’s provision barring double recovery declares
that “[a]ny person who receives compensation for removal
costs or damages or claims pursuant to any other Federal or
State law shall be precluded from receiving compensation
for the same . . . costs” under CERCLA. 42 U.S.C.
§ 9614(b). The district court held that § 9614(b) precluded
it from entering a finding of liability as to the blend and
replacement water costs because at trial SCVWA sought
“‘just over $2.9 million’ in blend water costs . . . and ‘just
 SCVWA V. WHITTAKER CORPORATION 29

over $4.1 million’ in replacement water costs,” and the jury
returned a verdict for $7 million for past damages, thus
compensating it for the removal costs under state law.
Therefore, according to the district court, a finding of
liability would be double recovery of those costs.
Although the district court was correct in holding that
§ 9614(b) precludes a party from receiving compensation for
the same costs, it misconstrued SCVWA’s request for a
finding of liability. SCVWA does not seek an award of
damages under CERCLA, but rather it seeks a finding that
Whittaker is liable for those damages. A finding of liability
under CERCLA for past response costs ensures that a party
can recover those costs if the damage award otherwise
remains unsatisfied, and it provides the party access to other
remedies under CERCLA that it may be entitled to in the
future. See e.g., 42 U.S.C. § 9613(g)(2) (mandatory
declaratory judgment on liability that is binding on any
subsequent action to recover further response costs).
We have not had an opportunity to clarify whether a
finding of liability for incurred response costs under
CERCLA is precluded by § 9614(b)’s bar on double
recovery. We do so now and hold that § 9614(b) does not
bar a finding of liability as long as the district court fashions
the relief such that the plaintiff will not recover double
compensation.
Indeed, the Southern District of California did just that
in Price v. U.S. Navy, 818 F. Supp. 1326, 1332–33 (S.D. Cal.
1992), aff’d, 39 F.3d 1011 (9th Cir. 1994). There, the district
court found that the plaintiffs had “met their burden of proof
under CERCLA,” and accordingly apportioned liability
across the three responsible defendants. Id. at 1333.
However, the court held that § 9614(b) barred plaintiffs from
30 SCVWA V. WHITTAKER CORPORATION

receiving further damages because they had “incurred costs
in the total amount of $34,628.56,” and received “payments
from [the State of California and a settlement] in the amount
of $55,000.00, [therefore] the net award to plaintiffs is zero.”
Id. at 1332–33. We agree with the Price court’s reasoning
and hold that a finding of liability is not barred by § 9614(b)
so long as the district court frames the relief such that the
recovering party does not receive compensation for costs or
damages that they have already received pursuant to state or
federal law.
Because we now hold CERCLA’s bar on double
recovery does not preclude a finding of liability for incurred
response costs, we must determine whether SCVWA has
otherwise satisfied the elements of CERCLA for its incurred
blend and replacement water costs such that a finding of
liability is appropriate.
2. Liability for Blend Water Costs
We first turn to SCVWA’s claim that it is entitled to a
finding of liability against Whittaker for its blend water costs
under CERCLA’s citizen suit provision. Only the third
element is at issue—whether a “‘release’ or ‘threatened
release’ has caused the plaintiff to incur response costs that
were ‘necessary’ and ‘consistent with the national
contingency plan,’ 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B).”
3550 Stevens Creek Assocs., 915 F.2d at 1358.
“Response costs are considered consistent with the NCP
‘if the action, when evaluated as a whole, is in substantial
compliance’ with it.” City of Colton v. Am. Promotional
Events, Inc.-W., 614 F.3d 998, 1003 (9th Cir. 2010) (quoting
40 C.F.R. § 300.700(c)(3)(i)). “[T]he issue of substantial
compliance is a mixed question of law and fact. Its
resolution involves the application of the law to a set of facts.
 SCVWA V. WHITTAKER CORPORATION 31

Our review is de novo.” Louisiana-Pac. Corp. v. ASARCO
Inc., 24 F.3d 1565, 1576 (9th Cir. 1994) (citing Boone v.
United States, 944 F.2d 1489, 1492 (9th Cir. 1991)).
The NCP “is designed to make the party seeking
response costs choose a cost-effective course of action to
protect public health and the environment.” City of Colton,
614 F.3d at 1003 (quoting Carson Harbor Vill., Ltd. v. Cnty.
of Los Angeles, 433 F.3d 1260, 1265 (9th Cir. 2006)
(“Carson Harbor II”)). The U.S. Environmental Protection
Agency (“EPA”) requires a private party seeking recovery
of response costs under CERCLA to substantially comply
with the requirements of the NCP, which includes a number
of regulations. 40 C.F.R. § 300.700(c)(3)(i), (5), (6). At
issue for SCVWA is whether it properly complied with the
public participation requirements of the NCP when it
incurred the blend water costs.
There are two separate response actions that a private
party may engage in that will entitle it to relief under
CERCLA, 42 U.S.C. § 9607(a): (1) remediation actions and
(2) removal actions. Carson Harbor Vill., Ltd. v. Unocal
Corp., 287 F. Supp. 2d 1118, 1155 (C.D. Cal. 2003)
(“Unocal Corp.”) (citations omitted); 40 C.F.R. §§ 300.5,
300.430, 300.415. Remediation refers to actions that
permanently remedy the harm caused by the release or
threatened release of hazardous contaminants. § 300.5;
Unocal Corp., 287 F. Supp. 2d at 1155. Removal actions are
short-term and meant to mitigate any immediate risk or harm
caused by hazardous contamination. § 300.5; Unocal Corp.,
287 F. Supp. 2d at 1155. Remediation actions involve more
stringent public participation requirements than removal
actions. Compare § 300.430(c) (public participation
requirements for remedial actions), with § 300.415(n)
(public participation requirements for removal actions).
32 SCVWA V. WHITTAKER CORPORATION

However, the NCP holds that “[p]rivate parties undertaking
[either] response action[] should provide an opportunity for
public comment concerning the selection of the response
action.” 40 C.F.R. § 300.700(c)(6).
SCVWA’s blend water costs constitute removal actions
because they are short-term, necessary costs, incurred in
response to an immediate threat of a release of hazardous
substances. See Unocal Corp., 287 F. Supp. 2d at 1155; 40
C.F.R. § 300.5. SCVWA purchases contaminant-free water
to blend with water treated at the V-201 wellhead treatment
facility prior to discharging the water into the Santa Clara
River in accordance with its NPDES permit. That the
Agency later sought compensation from Whittaker to pursue
a remediation action in the form of permanent treatment
facilities supports the proposition that its blend water costs
are removal actions.
The EPA has further delineated removal actions into two
categories depending on the amount of time before on-site
removal action must begin, each requiring differing levels of
public participation. 40 C.F.R. § 300.415(n). Time-critical
removal actions (“TCRA”) have a planning period of less
than six months before onsite action must begin.
§ 300.415(n)(2). These regulations require the least amount
of public participation—a private party taking action must
give adequate notice to the community within 60 days of the
removal activity beginning, provide a public comment
period, and prepare written responses to significant public
comments. § 300.415(n)(2)(i), (ii), (iii). Within the TCRA
framework, if the ultimate response action is expected to
extend beyond 120 days, then the responding party must
satisfy more thorough public participation requirements.
§ 300.415(n)(3). By the end of the 120-day period the
responding party shall interview local interested parties,
 SCVWA V. WHITTAKER CORPORATION 33

prepare a “community relations plan” incorporating
community concerns, and establish a local information
repository. § 300.415(n)(3)(i), (ii), (iii).
Non-time-critical removal actions (“non-TCRA”) have a
planning period of at least six months before onsite removal
actions must begin. 40 C.F.R. § 300.415(n)(4). These
actions mandate the most stringent public participation
requirements. In addition to adhering to the requirements of
§ 300.415(n)(3), the responding party must complete an
engineering evaluation/cost analysis (“EE/CA”) to analyze
removal alternatives. § 300.415(b)(4)(i). The public
participation regulations require compliance with
§ 300.415(n)(3) before the EE/CA is completed. Id. The
community must be notified of the availability of the EE/CA
and given an opportunity to comment. § 300.415(n)(4)(iii).
And again, the agency must respond to significant
comments. § 300.415(n)(4)(iv).
Even in the absence of substantial compliance with the
NCP, some courts have indicated that extensive government
oversight of the response actions may satisfy the public
participation requirement. See Bedford Affiliates v. Sills,
156 F.3d 416, 428 (2d Cir. 1998) (holding that extensive
government oversight of response actions “serves the
identical purpose that the public notice provision seeks to
effectuate”), abrogated in part by W.R. Grace & Co.-Conn.
v. Zotos Int’l Inc., 559 F.3d 85, 89–90 (2d Cir. 2009); Unocal
Corp., 287 F. Supp. 2d at 1167 (agreeing with the holding of
Bedford Affiliates, 156 F.3d at 428); Waste Mgmt. of
Alameda Cnty. v. E. Bay Reg’l Park Dist., 135 F. Supp. 2d
1071, 1102–03 (N.D. Cal. 2001) (stating that “even
assuming that government involvement could fulfill the
public participation requirements in some circumstances, it
would not be appropriate to do so here . . . [because it] was
34 SCVWA V. WHITTAKER CORPORATION

not unusually extensive; nor did it lead to comparable
opportunities for public input”).
The Second Circuit held that the agency involvement in
Bedford Affiliates was sufficient to satisfy the public
participation requirement because the agency was involved
in negotiating consent orders, investigating and
implementing the site assessment and interim remedial
measures, and overseeing the progress of the cleanup. 156
F.3d at 428.
In Unocal Corp., the district court opined “that extensive
government involvement in a private cleanup effort can,
under appropriate circumstances, fulfill the public
participation requirement of the NCP.” 287 F. Supp. 2d at
1167. However, it noted that the substitution is only
appropriate if there is evidence of “‘extensive’ or
‘comprehensive’ agency involvement in the cleanup, some
evidence that the agency was applying standards that were
identical to or consistent with the NCP, and some evidence
that the agency’s procedures allowed for public comment or
involvement.” Id. Finally, the court noted that the agency
itself must seek public input in order to “fulfill the purpose
of the NCP’s community relations requirement.” Id. at 1168.
In affirming the district court’s Unocal Corp. decision,
we noted that this “circuit has not decided if significant
agency involvement can satisfy the National Contingency
Plan’s public participation requirement . . . .” Carson
Harbor II, 433 F.3d at 1266. There, we declined to decide
the issue of first impression because “[e]ven if significant
agency involvement were enough to satisfy the National
Contingency Plan’s public participation requirement,” the
agency involvement “in this case is insufficient to do so.”
Id. The agency had visited the contaminated property and
 SCVWA V. WHITTAKER CORPORATION 35

participated in meetings regarding the pollution, but it did
not take a lead role. Id. Additionally, the agency was not
present during the preliminary investigation of the
contaminated property and was not actively involved in the
response action. Id.
We now hold that in limited circumstances substantial
and extensive government agency involvement can satisfy
the public participation requirements of the NCP. The
record here supports that conclusion. The district court
seemingly implied as much in its ruling on the parties’
Motions for Summary Judgment/Adjudication stating:
“Some of the public participation analysis is straightforward.
The blended water costs are the result of government
oversight, namely the contamination limits imposed by the
California Regional Water Quality Control Board
(“RWQCB”) according to [SCVWA]’s National Pollution
Discharge System Permit.” We agree, although we base our
decision on support in the record beyond SCVWA’s NPDES
permit conditions, and clarify that here, the permit
conditions alone do not establish sufficient government
oversight to satisfy the public participation requirements of
the NCP.
First, this case is distinguishable from Unocal Corp. and
Waste Management because the response actions in those
cases were remediation actions—requiring a heightened
level of public participation. 287 F. Supp. 2d at 1160–62;
135 F. Supp. 2d at 1101–03. Conversely, SCVWA’s blend
water costs constitute removal actions because they are
short-term, necessary costs, incurred in response to an
immediate threat of a release of hazardous substances. See
Unocal Corp., 287 F. Supp. 2d at 1155; 40 C.F.R. § 300.5.
36 SCVWA V. WHITTAKER CORPORATION

Next, the perchlorate treatment facility at V-201 is part
of the remedial action plan (“RAP”) for OU7 (Operable Unit
7 encompasses groundwater contamination on and off-Site),
which was required by DTSC pursuant to the 2002 remedial
action order against Whittaker. The RAP itself must be in
compliance with the NCP and DTSC’s public participation
policy. The RAP for OU7 analyzed six alternatives for
addressing groundwater contamination in the Saugus
Formation, finding that groundwater extraction and
treatment was the most viable alternative. Pumping
contaminated groundwater and treating it serves “as an
additional line of defense to minimize the potential
movement of perchlorate-impacted groundwater to the
unimpacted groundwater areas and additional protection of
other downgradient wells.”
Finally, because DDW has not yet issued SCVWA a
drinking water permit for V-201, the Agency must discharge
the treated water into the Santa Clara River in accordance
with the NPDES permit. In March 2018, RWQCB notified
SCVWA that it violated the NPDES permit by discharging
water into the Santa Clara River that exceeded certain
constituent limits set by the permit. To settle this
enforcement action, SCVWA began blending the water
discharged from the V-201 wellhead treatment facility with
contaminant-free water to be in compliance with the NPDES
permit. RWQCB, as the enforcing agency, is required to
publish any settlement of enforcement actions relating to
NPDES permit violations to the public, allow thirty days for
the public to comment, and respond to significant comments.
SCVWA, RWQCB, and Whittaker decided to blend the
water treated at the V-201 wellhead treatment facility so that
V-201 can continue operating as a containment well to
 SCVWA V. WHITTAKER CORPORATION 37

protect groundwater resources from further perchlorate
contamination, as required by DTSC.
We hold that, pursuant to the specific facts of this case,
SCVWA has satisfied the public participation requirements
of the NCP through substantial and extensive government
agency involvement. The decision to implement wellhead
treatment at V-201 and pump the contaminated water out of
the aquifer to contain the migrating perchlorate plume
resulted from significant oversight of remedial activities at
the Site by DTSC. This decision was only made after
multiple alternatives were analyzed. Because DDW has not
issued a drinking water permit, SCVWA must discharge the
treated water in accordance with the NPDES permit issued
by RWQCB, the lead agency that oversees treated
discharges. Due to a violation of that permit, SCVWA must
blend the treated water prior to discharge—a decision that
was published to the public and upon which the public was
entitled to comment.
The removal action was subject to several government
agency-imposed requirements, which were themselves
subject to public comment—this substantial and extensive
government oversight satisfies the public participation
requirements of the NCP. This is a fact dependent query,
and we decline to opine on whether government agency
involvement will always satisfy the public participation
requirements of the NCP, particularly in remediation actions
that require more extensive public participation.
Because we now clarify that CERCLA’s bar on double
recovery does not preclude a district court from entering a
finding of liability as to incurred response costs, and we hold
that Whittaker is liable for SCVWA’s incurred blend water
costs, we remand to the district court to amend its judgment
38 SCVWA V. WHITTAKER CORPORATION

consistent with this narrow holding. The jury apportioned
10% of fault to SCVWA; the district court adopted this
finding when apportioning liability against Whittaker for
IPD costs, holding Whittaker liable for the remainder. The
same finding applies here on remand. Accordingly,
Whittaker is liable under 42 U.S.C. § 9607(a) for 90% of
SCVWA’s blend water costs.
3. Liability for Replacement Water Costs
Finally, we must determine whether SCVWA
substantially complied with the NCP for its replacement
water costs. The district court held that it did not, finding
that it dispensed with the public participation requirement
entirely.
SCVWA advances two arguments as to why it is entitled
to a finding of liability against Whittaker for its replacement
water costs. First, it argues that the replacement water was
a TCRA, and that it complied with the lower standard of
public participation required for TCRAs. Next, it argues that
even if it did not substantially comply with the public
participation requirement, there was sufficient government
agency oversight to satisfy the NCP. Neither argument is
availing, and thus we affirm the district court’s denial of a
finding of liability as to SCVWA’s replacement water costs.
SCVWA first argues that the replacement water costs
constitute a TCRA, and the district court erred in finding that
it did not substantially comply with the less stringent
requirements. However, regardless of whether the
replacement water costs constitute a TCRA, it is undisputed
that the ultimate response action lasted longer than 120 days.
As discussed above, if a TCRA extends beyond 120 days the
more thorough requirements of 40 C.F.R. § 300.415(n)(3)
are triggered. These regulations require the responding party
 SCVWA V. WHITTAKER CORPORATION 39

to interview local interested parties, prepare a community
action plan, and establish a local information repository, in
addition to providing a public comment period as required
by § 300.415(n)(2).
SCVWA presented evidence that it sought public input
and participation in remediation actions for V-201, S-1, and
S-2, but it did not identify any community involvement in
selecting the replacement water removal action. Instead, it
relied on its regular communications with the public to argue
that it did not need to engage in any further public
participation in choosing the replacement water removal
action because the public is aware that SCVWA serves water
from both groundwater and surface water sources.
SCVWA’s expert, Dr. Zelikson, further opined that the
TCRA regulations, including the 120-day rule, do not apply
when the action is not visible to the public. SCVWA has not
pointed to any authority that supports its assertion that the
TCRA requirements only apply to visible removal actions.
Because the replacement water removal action extended
longer than 120 days, SCVWA had to engage in some
community outreach, regardless of whether the action was a
TCRA or non-TCRA. 40 C.F.R. § 300.415(n)(3). SCVWA
did not produce evidence demonstrating compliance with
this less stringent requirement; indeed, it argued instead that
it did not have to comply with the regulations at all because
the removal action was not visible to the public.
Accordingly, SCVWA did not satisfy the public
participation requirements of the NCP.
Next, SCVWA argues that the involvement of DDW and
DTSC was extensive enough to satisfy the public
participation requirements of the NCP. SCVWA relies
solely on agency involvement in the cleanup of the Site
40 SCVWA V. WHITTAKER CORPORATION

generally to argue that the agencies were substantially
involved in the decision to purchase replacement water—
this is insufficient. Unlike the blend water costs that were
incurred to comply with the NPDES permit—a requirement
to operate V-201 as a containment well as contemplated by
the RAP—the replacement water costs do not share a nexus
with DTSC’s goal of removing the migrating perchlorate
plume. Further, RWQCB’s regulations require it to publish
and allow public comment on any settlement of enforcement
actions, including the decision to blend the treated water
prior to discharge. There is no indication that either agency
required a public comment period for the decision to
purchase replacement water.
Because the agencies were not specifically involved in
the removal action of purchasing replacement water,
SCVWA cannot establish extensive government oversight
sufficient to satisfy the public participation requirements of
the NCP. Accordingly, we affirm the district court’s finding
that SCVWA is not entitled to a finding of liability under
CERCLA for its replacement water costs.
F. Declaratory Relief Under CERCLA
SCVWA seeks a declaratory judgment under 42 U.S.C.
§ 9613(g)(2). The district court denied declaratory relief,
finding that the jury award of future costs associated with the
treatment facilities was sufficient and any further relief
would be duplicative. The district court’s interpretation of
CERCLA is reviewed de novo. Montrose Chem. Corp. of
Cal., 104 F.3d at 1512. Because § 9613(g)(2) is mandatory,
we hold that the district court erred by denying declaratory
relief as to the incurred response costs for which SCVWA
has established CERCLA liability.
 SCVWA V. WHITTAKER CORPORATION 41

Section 9613(g)(2) provides that when a party succeeds
in an action under 42 U.S.C. § 9607, “the court shall enter a
declaratory judgment on liability for response costs or
damages that will be binding on any subsequent action or
actions to recover further response costs or damages.” 42
U.S.C. § 9613(g)(2) (emphasis added); City of Colton, 614
F.3d at 1007 (“[I]f a plaintiff successfully establishes
liability for the response costs sought in the initial cost-
recovery action, it is entitled to a declaratory judgment on
present liability that will be binding on future cost-recovery
actions.”). We have previously construed the language of
§ 9613(g)(2) as “mandatory relief.” Pakootas v. Teck
Cominco Metals, Ltd., 905 F.3d 565, 586 (9th Cir. 2018).
Future response costs, not yet incurred, are not
recoverable under CERCLA. ASARCO LLC v. Atl. Richfield
Co., LLC, 975 F.3d 859, 866 (9th Cir. 2020); In re Dant &
Russell, Inc., 951 F.2d 246, 249–50 (9th Cir. 1991).
“Instead, a declaratory judgment, whereby liability for future
response costs would be allocated at a set percentage across
responsible parties, is the proper mechanism for recouping
future response costs in the CERCLA regime.” ASARCO
LLC, 975 F.3d at 866 (emphasis added).
The district court denied SCVWA declaratory relief
because the jury awarded past and future damages pursuant
to the state law tort claims, obviating the need for the Agency
to recover further response costs. It is possible, or even
likely, that SCVWA may never incur further costs that are
not already fulfilled by the jury award. And to be sure, even
with a grant of declaratory relief, CERCLA’s bar on double
recovery will prevent SCVWA from receiving costs that are
duplicative of the jury award. 42 U.S.C. § 9614(b).
However, “[r]egardless of whether future response costs are
speculative—or even . . . affirmatively unlikely—CERCLA
42 SCVWA V. WHITTAKER CORPORATION

requires that a successful plaintiff in a section 107(a) action
be awarded . . . declaratory relief.” Pakootas, 905 F.3d at
586. Therefore, we hold that SCVWA is entitled to
declaratory relief pursuant to § 9613(g)(2) for the two
categories of response costs that Whittaker is liable for:
blend water costs and IPD costs. Accordingly, we remand
to the district court to amend its judgment consistent with
this opinion.
G. Prejudgment Interest
SCVWA next argues that the district court erred by only
awarding prejudgment interest for one category of response
costs—its incurred blend water costs. The district court
denied prejudgment interest for replacement water costs
reasoning that SCVWA did not experience economic harm
by incurring those costs because it passed the costs onto
customers. An award of prejudgment interest is reviewed
for abuse of discretion. Bullis v. Sec. Pac. Nat’l Bank, 21
Cal. 3d 801, 815 (1978). We find that the district court did
not abuse its discretion by limiting SCVWA’s entitlement to
prejudgment interest on only the costs that it was unable to
recoup. Accordingly, we affirm.
Under California law, interest may be awarded at the
discretion of the fact finder, “[i]n an action for the breach of
an obligation not arising from contract . . . .” Cal. Civ. Code
§ 3288; Greater Westchester Homeowners Ass’n v. City of
Los Angeles, 26 Cal. 3d 86, 102–03 (1979). Prejudgment
interest is a form of compensatory damages meant to make
the injured party whole. Bullis, 21 Cal. 3d at 815; Nordahl
v. Dep’t of Real Estate, 121 Cal. Rptr. 794, 798 (Ct. App.
1975); In re Pago Pago Aircrash of Jan. 30, 1974, 525 F.
Supp. 1007, 1015–16 (C.D. Cal. 1981); Cassinos v. Union
Oil Co. of Cal., 18 Cal. Rptr. 2d 574, 586 (Ct. App. 1993).
 SCVWA V. WHITTAKER CORPORATION 43

The purpose of awarding prejudgment interest is to
account for “the accretion of wealth which money or
particular property could have produced during a period of
loss.” Greater Westchester Homeowners Ass’n, 26 Cal. 3d
at 102–03; Cassinos, 18 Cal. Rptr. 2d at 586. Under this
principle, California courts have awarded prejudgment
interest where injured parties have “been deprived of the use
of [their] money or property” during the period between the
breach and the judgment. Nordahl, 121 Cal. Rptr. at 799;
Cassinos, 18 Cal. Rptr. 2d at 586; Bullis, 21 Cal. 3d at 815;
see In re Pago Pago, 525 F. Supp. at 1015. Indeed, “[t]he
policy underlying authorization of an award of prejudgment
interest is to compensate the injured party—to make that
party whole for the accrual of wealth which could have been
produced during the period of loss.” Cassinos, 18 Cal. Rptr.
2d at 586.
Therefore, a plaintiff will prevail on a claim for
prejudgment interest pursuant to Cal. Civ. Code § 3288 if it
can prove (1) the award will “make the plaintiff whole,” and
(2) the date that the “plaintiff parted with the money or
property,” to allow the court to accurately calculate interest.
Nordahl, 121 Cal. Rptr. at 799; see Bullis, 21 Cal. 3d. at 815.
Despite this weight of authority, SCVWA argues that it
is entitled to prejudgment interest so long as it can show
“(1) that its damages included the cost of replacement water
and (2) that those damages were ‘readily attainable.’” In so
arguing, it overlooks the purpose of prejudgment interest—
namely, to make the injured party whole. Unlike the
plaintiffs in other California cases that have been awarded
prejudgment interest, SCVWA has not shown how it has
been deprived of the use of its money by purchasing
replacement water because it passed those costs onto its
customers. As the district court noted, the jury award
44 SCVWA V. WHITTAKER CORPORATION

included $7 million for past damages, which encompassed
damages for past replacement water costs. Accordingly, we
hold that the district court did not abuse its discretion by
denying SCVWA prejudgment interest on its replacement
water costs because it was not necessary to make SCVWA
whole.
H. Attorneys’ Fees
Finally, SCVWA challenges the district court’s denial of
attorneys’ fees under California’s private attorney general
statute, Cal. Civ. Proc. Code § 1021.5. The district court
denied fees because it determined, based on the plain
language of the statute, that SCVWA is not entitled to
attorneys’ fees. An appellate court reviews a district court’s
interpretation of state law de novo. Salve Regina Coll. v.
Russell, 499 U.S. 225, 231 (1991). Because the statute
precludes SCVWA from receiving attorneys’ fees, we
affirm.
When a federal court interprets a California statute it
applies California canons of construction. In re Lieberman,
245 F.3d 1090, 1092 (9th Cir. 2001) (citing In re Lares, 188
F.3d 1166, 1168 (9th Cir. 1999)). “Under California law, the
cardinal rule of statutory construction is to determine the
intent of the legislature.” Id. To determine the intent of the
legislature, a court must be “careful to give the statute’s
words their plain, commonsense meaning.” Kavanaugh v.
W. Sonoma Cnty. Union High Sch. Dist., 29 Cal. 4th 911,
919 (2003) (citation omitted). “If the language of the statute
is not ambiguous, the plain meaning controls and resort to
extrinsic sources to determine the Legislature’s intent is
unnecessary.” Id. (citation omitted). Accordingly, the
 SCVWA V. WHITTAKER CORPORATION 45

analysis must begin with the statute, which states, in relevant
part:

[A] court may award attorneys’ fees to a
successful party . . . in any action which has
resulted in the enforcement of an important
right affecting the public interest if: (a) a
significant benefit . . . has been conferred on
the general public or a large class of persons,
(b) the necessity and financial burden of
private enforcement, or of enforcement by
one public entity against another public
entity, are such as to make the award
appropriate, and (c) such fees should not in
the interest of justice be paid out of the
recovery, if any. With respect to actions
involving public entities, this section applies
to allowances against, but not in favor of,
public entities, and no claim shall be
required to be filed therefor, unless one or
more successful parties and one or more
opposing parties are public entities.

Cal. Civ. Proc. Code § 1021.5 (emphasis added).
Here, it is not genuinely contested that SCVWA is a
public agency, and Whittaker is a private company. The
statute clearly only allows public agencies to get an award of
attorneys’ fees if they succeed in an action against another
public agency. Cal. Civ. Proc. Code § 1021.5. Because the
plain language of the private attorney general statute does
not allow for an award of attorneys’ fees when a public entity
is successful in an action against a private entity, we affirm
the district court’s denial of attorneys’ fees.
46 SCVWA V. WHITTAKER CORPORATION

CONCLUSION
For the foregoing reasons, we affirm in part, and reverse
and remand in part for the district court to amend the
judgment consistent with this opinion.
Costs are awarded to the Plaintiff-Appellee.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED with Instructions.