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United States v. Akzo Nobel Coatings, Inc.

Citation: 28 ELR 21097
No. 95-71470, 990 F. Supp. 897/46 ERC 1490/(E.D. Mich., 01/07/1998)

The court holds that the U.S. government timely filed its Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action to recover costs incurred by the U.S. Environmental Protection Agency (EPA) during the cleanup of a contaminated landfill in Lampeer County, Michigan. The court first holds that action taken during the first phase of the landfill's cleanup was a remedial action under CERCLA. Thus, the government had six years from the date of the remedial action's commencement to file a cost recovery suit. However, the court next holds that work occurring six years prior to the filing of the government's complaint was either part of the remedial design for the first phase of cleanup or part of the preliminary investigation necessary to formulate the remedial investigation/feasibility study and record of decision (ROD) for the second phase of cleanup and, thus, a removal action. The ROD clearly foresaw that much investigatory work still had to be done before the actual implementation of the first phase of cleanup. Moreover, publication of the ROD was clearly not the end of the study and investigation leading up to implementation of the cleanup and, therefore, not the end of the removal action. The ROD also provided that further testing would be necessary before the actual work on the first phase of cleanup could begin. The court also holds that even work conducted one month before the statute of limitations period began was merely preliminary or preconstruction steps and not an integral step in the implementation of the permanent remedy provided for under the ROD. Even if defendants' version of events proves to be correct — that EPA began work one month prior to the limitations period — none of the alleged events would constitute the initiation of physical on-site activity. Thus, the government timely filed suit to recover the costs associated with the remedial action during the first phase of cleanup.

Next, the court holds that the government timely filed its complaint to recover certain costs it paid for performing a remedial investigation, a feasibility study, and a second ROD in connection with the second phase of cleanup. It is undisputed that these costs relate to removal activities. Thus, the government had three years from the date of the removal action's completion to file a cost recovery suit. The court rejects defendants' argument that the removal action ended with the publication of the second ROD. The term "removal" under CERCLA § 101 has been interpreted to cover site investigation and study, of which remedial design is an important part. And the government's efforts to refine the design for the second phase of cleanup prior to implementation were ongoing and involved investigation, assessment, and evaluation of the release or threat of release of hazardous substances at the site.

[Another decision in this litigation is published at 28 ELR 21096.]

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