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United States v. Akzo Nobel Coatings, Inc.

Citation: 28 ELR 21096
No. 95-71470, 990 F. Supp. 892/46 ERC 1486/(E.D. Mich., 01/07/1998)

The court holds that the U.S. Environmental Protection Agency's (EPA's) selection of a total incineration remedy instead of a combination remedy during the environmental cleanup of a landfill site in Lampeer County, Michigan, is not arbitrary, capricious, nor inconsistent with the national contingency plan (NCP). The court first notes that the NCP does not require response cost items to be reasonable, proper, or cost effective in order for the United States to recover its response costs. Rather, the court's inquiry is limited to a determination that the costs arose out of actions that comported with the NCP. The court then holds that the remedy was rationally chosen based on the information available at the time the remedy was selected. The record clearly shows that where remediation was to be implemented the areas were thoroughly investigated, a phased feasibility study was conducted that screened and evaluated remedial alternatives, the remedy selected was carefully weighed against other alternatives according to criteria set forth in the NCP, and the remedy was in all other respects consistent with the guidelines established by EPA for the selection of remedies. Because defendants failed to point to a genuine issue of material fact regarding whether the costs for remediation that EPA incurred were inconsistent with the NCP, summary judgment in favor of EPA is appropriate.

[Another decision in this litigation is published at 28 ELR 21097.]

Counsel for Plaintiff
David G. Hetzel, Ronald W. Zdrojeski
LeBoeuf, Lamb, Greene &MacRae
Goodwin Sq.
225 Asylum St., 13th Fl., Hartford CT 06103
(860) 293-3500

Counsel for Defendants
Gary R. Letcher, Arthur A. Schulcz Sr.
The Harker Firm
5301 Wisconsin Ave. NW, Ste. 740, Washington DC 20015
(202) 966-7900

Fred R. Wagner
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000