ELR Citation: ELR 21455
No(s). 90-31-VAL (WDO) (M.D. Ga. Mar 22, 1994)

The court holds that the United States is entitled to recover $2,094,410.10 under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for removal costs it incurred in cleaning up creosote at the site of a former wood treatment plant. The court first holds that the U.S. Environmental Protection Agency's (EPA's) cleanup constituted a removal action. The Agency's response was not too time-consuming and the court and the Eleventh Circuit already recognized the response as a "removal" action in a related suit. The court next holds that the government is entitled to recover all costs incurred, because the government sufficiently established that the costs were attributable to the cleanup and that each expenditure fell within one of the categories of recoverable costs under CERCLA §§101(23), 104(b), and 107(a)(4).

The court next holds that the company failed to show that any of the costs incurred were inconsistent with the National Contingency Plan (NCP). Although the company raised the question of the cost effectiveness of EPA's selected remedy, CERCLA mandates that the NCP assure cost effectiveness only for remedial actions, not for removal actions. The court holds that the company failed to raise a genuine issue of material fact as to whether the response chosen by EPA was arbitrary and capricious. Finally, the court holds that CERCLA §101(14)'s petroleum exclusion does not apply, because the company has conceded that any petroleum product removed by the government was mixed with creosote, a hazardous substance.

[A prior decision in this litigation is published at 23 ELR 20740.]

Counsel for Plaintiff
Frank L. Butler III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Rita A. Sheffey, Charles A. Perry
Hunton & Williams
Nationsbank Plaza
600 Peachtree St. NE, Atlanta GA 30326
(404) 888-4000