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Union Pac. R.R. Co. v. Reilly Indus., Inc.

Citation: 28 ELR 20477
(11/03/1997)

The court holds that a company's environmental remediation failed to comply with the national contingency plan (NCP) and, thus, barred it from recovering any Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanup costs from a responsible party. The court first holds that on the basis of the company's failure to provide for public comment, the company was not in substantial compliance with the NCP. In order for public comment to be meaningful, the final decision must be open for discussion among remedial alternatives. Based on a review of the record in this case, the public was informed of the selection without a reasonable opportunity for discussion. Contrary to the company's assertion, the record does not support a determination that the remedial alternatives were a subject for any meaningful public debate. The court next holds that the company did not satisfy the standards required by the NCP with respect to a remedial investigation and feasibility study (RI/FS). The court agrees with the assertion that neither the company's remedial action workplan nor the remedial action implementation report contain any discussion of the RI/FS criteria or provide a detailed analysis of remedial alternatives, the threat to public health or the environment, or the cost effectiveness of the thermal desorption remedy. Although the company submits notes and memoranda in support of its position that it satisfied the RI/FS requirement, the notes and memoranda are not a substitute for the detailed provisions of the federal regulations. The court then dismisses the remaining state-law claims without prejudice.

Counsel for Plaintiff
Richard Ihrig
Lindquist & Vennum
4200 IDS Center
80 S. 8th St., Minneapolis MN 55402
(612) 371-3211

Counsel for Defendant
Becky A. Comstock
Dorsey & Whitney
220 S. 6th St., Minneapolis MN 55402
(612) 340-2600