Classification of CERCLA Response Actions as Removal or Remedial

Jerry L. Anderson and B. Kip Shelby

Editors' Summary: CERCLA divides response actions into two categories: removal actions and remedial actions. The need for clarity in the classification of CERCLA response actions as removal or remedial actions is crucial for private parties attempting to recover their response costs. These parties must prove that the costs of their response actions are necessary and consistent with the national contingency plan (NCP), however, the NCP requirements differ for the two types of actions. Thus, before determining the consistency of a response action's costs with the NCP, a court must first categorize the response as either a removal or remedial action under CERCLA. Because response costs are recoverable only to the extent they are consistent with the NCP, and because the NCP's requirements for remedial actions are profoundly more burdensome than the NCP's removal action requirements, the classification of the response action may very well determine the success of a cost recovery action.

Congress has provided parties and courts little guidance on how to classify a CERCLA response action. In this apparent void, an array of court-created response-action classification tests has been developed. The authors review these tests, which rely to varying degrees on factors related to the nature and purpose of the response action. The authors suggest that Congress should alleviate the uncertainty that the diversity of tests has created by eliminating, to the extent possible, the distinctions between removal and remedial actions, and, further, by clarifying how the two types of actions can be identified. The authors' review reveals that the court-created distinctions are mostly superfluous. They conclude that in the absence of congressional action, courts should adopt a uniform test that focuses on the level of need for urgent action. Under his approach, a greater need would require classifying the response action at issue as a removal.

Mr. Anderson is an Associate Professor at Drake University Law School, Des Moines, Iowa. He is a graduate of the University of Kansas (B.S., 1981) and Stanford Law School (J.D. 1984). Mr. Shelby is an Associate at the Ouderkirk Law Firm, Indianola, Iowa. He is a graduate of Bradley University (B.S., 1990) and Drake University Law School (J.D. 1993).

[23 ELR 10659]

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) divides response actions to hazardous substancereleases into two categories: removal actions and remedial actions.¹ Removals generally consist of short-term interim measures taken to prevent imminent harm and exacerbation of a release.² Remedial actions generally comprise the long-term treatment or containment that is the permanent solution to a release.³

The correct classification of a CERCLA response action as removal or remedial is crucial, because response costs are recoverable only to the extent that they are consistent with the national contingency plan (NCP),⁴ which provides significantly different requirements for removal and remedial actions.⁵ For example, removals may not have to comply with applicable or relevant and appropriate requirements (ARARs), whereas remedial actions must comply.⁶ Remedial action, unlike removal action, requires extensive pre-action [23 ELR 10660] study and the opportunity for public comment.⁷ Thus, having to comply with remedial action requirements could significantly increase the cost of a particular action.

Other CERCLA provisions also distinguish between removal and remedial actions. For example, the government may use the Superfund to finance removal action, but not remedial action, at sites that are not listed on the national priorities list (NPL).⁸ In addition, different statutes of limitations apply to suits to recover the costs of a removal or remedial action.⁹

Despite the importance of the distinctions between the two actions, Congress has provided parties and courts little guidance about how to classify a CERCLA response action. CERCLA's legislative history suggests that Congress envisioned a model site for which there would exist one clearly recognizable short-term action — a removal action — and one equally recognizable long-term action — a remedial action.¹⁰ In reality, however, CERCLA responses may comprise a series of actions, many of which have characteristics shared by removal and remedial actions. Courts struggling to classify responses have, as a result, developed various classification tests. The diversity of the tests has left parties to legal actions uncertain about how to classify actions properly. This uncertainty adds to the preexisting inefficiencies of CERCLA cleanups.

This Article reviews the existing judicially created classification tests. The Article suggests that Congress should alleviate this uncertainty by eliminating, to the extent possible, the distinctions between removal and remedial actions. A close examination of relevant case law reveals that the distinctions are mostly superfluous.¹¹ Further, to remove the remaining uncertainty, Congress should clarify how the two types of actions can be identified. The Article concludes that, in the absence of legislative action, courts should adopt a uniform test that focuses on the level of need for urgent action as the best indicator of whether to classify a response action as removal or remedial. A greater need would require classifying the response action at issue as a removal.

Classification Tests

From statutory language and legislative history, courts have developed a list of characteristics that distinguish removal from remedial actions. The list may be summarized as follows:

1) removal action is taken in response to imminent harm; remedial action is taken after the immediate threat has been abated;¹²

2) removal action is temporary; remedial action is permanent;¹³

3) removal action is taken shortly after the release is discovered; remedial action may not occur for years;¹⁴

4) removal action can be taken without extensive analysis; remedial action requires careful study;¹⁵ and

5) remedial action is more costly and may take longer than removal action.¹⁶

Unfortunately, these factors have not led to consistency in the classification of actions, because the indicators sometimes point to different conclusions. For example, an action mightbe classified as a removal because it is taken in response to imminent harm; however, the action may also be time-consuming, costly, and it may permanently clean up the site. Similarly, an action might be classified as removal in nature because it was to serve as only a temporary solution; it also could be classified as remedial, however, because it was conducted many years after discovery of the site and was expensive.

The absence of a bright-line test has led courts to balance these factors to determine how to classify a particular action.¹⁷ Courts generally look first to the definitions of removal and remedial actions provided by Congress in CERCLA and the U.S. Environmental Protection Agency (EPA or the Agency) in its regulatory interpretation of the statutory definitions.¹⁸ This examination, however, is usually inconclusive due to ambiguities of the statutory definitions. Courts next consider whether the action was taken in response to imminent harm. Courts also may examine the nature of the response action itself, including its cost, duration, scope, and timing.

Statutory Definitions

Although classification of response actions as removal or remedial logically begins with CERCLA definitions, reference to this cryptic language can lead to confusion more often than enlightenment. Nonetheless, interpretation of the statutory classification must begin with an attempt to divine congressional intent from the language provided.

"Removal" action is defined by CERCLA as:

the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary [23 ELR 10661] [to be] taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment,….¹⁹

Most of this language does not aid the classification decision. For example, the phrase "the cleanup or removal of released hazardous substances" could as easily describe a typical remedial action.²⁰ Nevertheless, courts have derived some assistance from the phrase "monitor, assess, and evaluate" in deciding to classify preliminary testing²¹ and the remedial investigation/feasibility study (RI/FS) as removal action.²²

The focus of the removal definition appears to be on action taken to "prevent, minimize, or mitigate" environmental damage or threats to public health. That phrase has led courts to conclude that short-term abatement measures are the primary denizens of the removal category.²³ Application of this phrase, however, usually does not end the inquiry, because most actions considered "remedial" in nature, such as a landfill cap, also act to "prevent or minimize" environmental damage and, in fact, the "remedial" definition contains that identical language.²⁴

CERCLA's definition of "remedial" action also provides little help in distinguishing those actions from removals. Remedial actions are primarily defined as those actions "consistent with permanent remedy,"²⁵ and courts have attempted to derive a classification test from that language.²⁶ The distinction between measures that are "temporary" and those that are "permanent" remedies, however, is often blurred. For example, the excavation of drums from a site's surface might be deemed a removal to satisfy the need for urgent action, but that action might also permanently remedy the contamination.²⁷ Conversely, many actions considered clearly remedial because they are expensive and are not urgent, such as installation of a landfill cap, may not really "permanently" remedy the contamination.²⁸

The statutory definitions and EPA's regulations both contain lists of exemplary removal and remedial actions.²⁹ Naturally, courts are greatly influenced by the inclusion of a particular response on one of those lists.³⁰ Nevertheless, the lists are not comprehensive and should not be the only support for the classification of a particular response action. The context of the action must still be evaluated. A fence constructed during the final phases of site cleanup, for example, would not be considered a removal action even though it appears on the definitional list for removal action.

Undue reliance on the statutory language can lead to inconsistent results. For example, several recent cases have intimated that if any material is "removed" from the site, it is presumably a "removal action."³¹ Similarly, other courts have maintained that any response involving "off-sitetransportation"³² of waste should probably be categorized as a removal, because the pre-1986 remedial action definition appeared to exempt such action.³³ These lines of analysis are inaccurate. The "off-site transportation" language in the remedial action definition, for example, was merely an early attempt by Congress to control the choice of remedy, and, thus, is irrelevant to the classification of a particular action as a removal or remedial action. In fact, many long-term, permanent cleanups deemed remedial actions involve "off-site transportation" of waste. Moreover, many actions properly characterized as remedial due to the nature of the harm to which they respond involve the "removal" of hazardous substances.

Thus, although the removal/remedial distinction must start with an examination of the statutory language, the inquiry usually will not end there.

Immediate Nature of Harm

Given the ambiguity of the statutory definitions, courts classifying responses have focused on whether the action was taken to address an imminent harm.³⁴ In Versatile Metals, Inc. v. Union Corp., for example, the court explained that proper removal actions "are limited in scope to address the immediate threat."³⁵ Conversely, in Channel Master Satellite Systems, Inc. v. JFD Electronics Corp., the court [23 ELR 10662] emphasized that "nonurgent situations are to be addressed as remedial actions."³⁶ And the court in Con-Tech Sales Defined Benefit Trust v. Cockerham concluded that the crucial distinction between removal and remedial action is "the need for speedy action, rather than the temporary or permanent nature of the [response]."³⁷

The NCP also relies on urgency in determining when removal action is appropriate.³⁸ The immediacy of the threat to the environment and public health is measured by weighing factors such as the potential for drinking water contamination, migration, fire, explosion, and human contact.³⁹ Courts may use these same factors in determining whether the risk of harm justifies classifying the action as a removal action.⁴⁰

The threat of harm need not become a true emergency, however, to justify removal action.⁴¹ The immediacy of the harm must be judged by the CERCLA time clock, including the knowledge that the alternative is a remedial planning process that could take many years to complete.⁴² In addition, removal action may be appropriate when taking early action could avoid the need for later, more expensive responses, even in cases where the risk of harm is less than imminent.⁴³ Thus, although actions taken in response to immediate threats are clearly removal actions, some actions taken when the threat is not as imminent should also be classified as removal.⁴⁴

Nature of the Response Action

Some courts have focused more on the response action's characteristics than on its purpose.⁴⁵ Thus, courts have examined the size, scope, duration, and timing of the action, as well as whether it effected a temporary or permanent solution to the contamination problem.⁴⁶

Courts, however, have been reluctant to classify an action as remedial solely because it constituted a permanent solution to the release, despite the presence of the word "permanence" in the definition of remedial action. Often an action that should be classified as removal, because it is taken in response to immediate harm, also happens to eliminate the need for further action. Although such action could be termed a "permanent" solution, it is nonetheless not a remedial action.⁴⁷

Nevertheless, an action is more likely to be classified as removal if it was intended to be a short-term solution to prevent the release from getting worse while long-term remedies are studied. In Versatile Metals, for example, the court found it significant that the party conducting the response action intended to remedy the contamination permanently rather than to temporarily abate it.⁴⁸

The duration and cost of a response action may also be considered important by some courts. In BCW Associates, Ltd. v. Occidental Chemical Corp., for example, the court used a 12-month benchmark as the appropriate duration for removal action.⁴⁹ In Channel Master, the court relied on the factors of duration and cost, classifying an action that lasted more than two years and cost $ 3.4 million as remedial.⁵⁰ The legislative history of the removal/remedial distinction does refer to cost and duration as relevant factors,⁵¹ presumably to ensure that large-scale actions pass through the careful consideration inherent in the remedial planning process. Nevertheless, a response action addressing imminent harm to prevent exacerbation of the contamination may be classified as removal, regardless of its cost or duration.

The timing of an action also may be relevant, because the failure to take quick action belies the need for urgent response. In Channel Master, for example, the court noted that the plaintiff had waited two years after discovery of the contamination to take action. This delay weighed against plaintiff's claim that an immediate removal was necessary.⁵² Other courts have found that despite significant delay, a response action may be classified as a removal if the urgent need for a response has not abated.⁵³

[23 ELR 10663]

Classification of the Remedial Investigation/Feasibility Study

Classification of responses is further complicated by the presence of an intermediate action called remedial planning, which includes the RI/FS. The RI/FS, a prerequisite to remedial action, is typically undertaken after any initial removal action is complete.⁵⁴ Falling between the two categories, the RI/FS itself can be a significant portion of the total response costs at many sites.

Most courts have classified the RI/FS as a removal action, because the statutory definition of removal includes actions taken to "assess" or "evaluate" the release or threat of release.⁵⁵ At least one court noted in dicta, however, that the RI/FS belongs in the remedial category, because it meets the statutory definition of "consistent with permanent remedy."⁵⁶ Another court found that the RI/FS could be classified as either removal or remedial.⁵⁷

If the RI/FS is a removal action, it is removal action of a type different than those actions taken in response to an immediate threat. The RI/FS is usually undertaken after any emergency response action is complete and it is conducted at a relatively leisurely pace.⁵⁸ Thus, the RI/FS seems to be sui generis, which can complicate the interpretation of the removal or remedial requirements.

For example, the RI/FS confuses the application of the statute of limitations. A suit to recover the costs of a removal action must be brought within three years of the completion of the removal action.⁵⁹ However, the statute does not specify the start of the three-year period when an initial emergency-type response is followed by an RI/FS. If both actions are denominated "removal," the time period could arguably start after completion of the initial removal action or only after the RI/FS is complete.⁶⁰

EPA decided in 1987 that an RI/FS, if it is a removal action, is a separate action which has no effect on the statute of limitations for the first removal action.⁶¹ That position appeared logical given that Congress, in providing for a limitations period to start on completion, must have assumed that the removal action would be completed fairly quickly. Because the RI/FS is a distinct type of removal action, treating it separately for purposes of the limitations statute made sense.

EPA's recently proposed cost recovery rule, however, changes the Agency's 1987 position, interpreting the completion of the removal action as the date the last remedial design report is completed, after the RI/FS has been done and just prior to construction of the remedy.⁶² This interpretation would delay the start of the limitation period for removal actions for many years at most sites, rendering the limitation virtually meaningless in those cases.

Adopting a Consistent Classification Test

Courts have not settled on any particular test for distinguishing removals from remedial action. Some courts stress the urgency of the need for the response,⁶³ while others seem to emphasize cost, duration, or the permanent nature of the cleanup.⁶⁴ A trend has nonetheless developed. The trend appears to be toward a multifactor balancing test that examines the "totality of the circumstances."⁶⁵ The approach weighs all of the characteristics of the response action.

Unfortunately, the multifactor approach lends uncertainty to the classification decision. As noted, many actions will have characteristics of both removal and remedial action. For example, the action may be urgently needed, but it also may be expensive, time-consuming, and it may permanently clean up the site. The classification of a response action as removal or remedial will, therefore, depend on which factor the court emphasizes.

Courts may be able to adopt a more consistent classification test by focusing on the reasons Congress chose to distinguish between the twotypes of action. For example, the NCP's requirements for remedial action are more extensive than those for removals because some actions must be taken quickly, without the undue delay associated with protracted study of the release.⁶⁶ Moreover, the NPL's listing of a site is not required for Superfund-financed removal actions because the time required for listing would seriously impede actions that are immediately necessary.

This suggests that actions that are necessary given the immediacy of the risk of harm should always be classified [23 ELR 10664] as removals, regardless of their cost or efficacy as to "permanent" cleanup of the site. The duration and nature of the action taken, for example whether it involves "off-site" transportation, are relevant only to the extent that they reveal the urgency factor. For example, did the action consist of only that action necessary to prevent imminent harm? Was it really necessary to transport the waste off site, or could it have been inexpensively contained on site pending further study? Cost may be relevant only in that parties should be able to undertake relatively inexpensive actions as removals without showing the same level of urgency needed to justify more expensive removals.

By clearly installing immediacy as the hallmark of removal actions, courts may be able to inject some certainty into the classification question. Naturally, line-drawing will persist in determining whether a particular risk of harm was sufficiently urgent to justify the measures taken. The focus of the inquiry, however, at least will be on those factors that are truly relevant to the distinctions between removal and remedial actions, rather than on whether the action lasted 12 months or 13 months, cost $ 1 million or $ 1.2 million, involved "off-site" transportation, or permanently cleaned up the contamination. A consistent test should help parties conduct efficient cleanups with the knowledge that they need not arbitrarily curtail a particular response action because they are uncertain as to its classification.

Conclusion

While the necessity for an urgent response appears to be the most prominent characteristic of removal action, factors such as the cost, duration, and timing of the action and whether it resulted in a permanent or temporary solution to the contamination may also be weighed by courts in the classification decision. Unfortunately, in many cases application of these factors does not clarify classification of removal and remedial actions. This uncertainty could lead to inequity if a party misclassifies a response action and is unable to recover its costs. Moreover, the removal/remedial distinction could lead to inefficiency, if removal actions are prematurely and artificially limited by arbitrary cost or duration restrictions. In the end, the creation of this two-category system may have to be reevaluated in light of experience that shows that many actions cannot easily be classified as removal or remedial.⁶⁷

1. 42 U.S.C. §§ 9601(23)-(25) (1988), ELR STAT. CERCLA 8.

2. See Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1576, 19 ELR 20472, 20477-78 (E.D. Pa. 1988).

3. New York v. Shore Realty Corp., 759 F.2d 1032, 1040, 15 ELR 20358, 20360-61 (2d Cir. 1985).

4. Private parties may recover the "necessary costs of response incurred … consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA 21. Government plaintiffs may recover costs that are "not inconsistent with" the NCP. Id. § 9607(a)(4)(A), ELR STAT. CERCLA 21.

5. See generally 40 C.F.R. pt. 300 (1992).

6. 40 C.F.R. § 300.415(i) (1992); 40 C.F.R. § 300.700(c)(5)(vi). In some limited circumstances, remedial actions may be selected that do not comply with ARARs. 40 C.F.R. § 300.430(f)(1)(ii)(C).

7. 40 C.F.R. § 300.430(a)(2) (1992); 40 C.F.R. § 300.430(f)(2). Removals may require some sort of public relations activity, depending on the exigencies of the particular action. 40 C.F.R. at 300.415(m).

8. See New York v. Shore Realty Corp., 759 F.2d 1032, 1047, 15 ELR 20358, 20364-65 (2d Cir. 1985).

9. 42 U.S.C. § 9613(g)(2)(A), ELR STAT. CERCLA 32 (three-year limitations period for removal action costs); 42 U.S.C. § 9613(g)(2)(B), ELR STAT. CERCLA 32 (six-year limitations period for remedial action costs).

10. S. REP. NO. 848, 96th Cong., 2d Sess. 54-55 (1980).

11. See Jerry L. Anderson, Removal or Remedial? The Myth of CERCLA's Two-Response System, 18 COLUM. J. ENVTL. L. 103, 147-50 (1993) (discussing ways to eliminate distinction).

12. S. REP. NO. 848, supra note 12, at 54 ("'Removal' refers to actions which must proceed without delay"; "'remedy' involves … measures which may be necessary after the need for emergency action has terminated.").

13. 42 U.S.C. § 9601(24), ELR STAT. CERCLA 8 (remedial action is "consistent with permanent remedy"); S. REP. NO. 848, supra note 12, at 54 (remedial action refers to "long-lasting response"; "'remedy' involves the more permanent … measures").

14. S. REP. NO. 848, supra note 12, at 54 (removal "refers to immediate responses").

15. Id. (removal is response "whose application can be decided upon without significant delay"; remedial action "must often be preceded by considerable study, investigation, planning and engineering before the appropriate actions can be determined").

16. Id. ("remedial action refers to potentially more costly, long-lasting response"; "'[r]emedy' involves the more permanent, costly measures").

17. See, e.g., Tri-County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 992-93 (E.D. Pa. 1992).

18. See, e.g., Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1577-79, 19 ELR 20472, 20478-79 (E.D. Pa. 1988); General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1419, 21 ELR 20453, 20454-55 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991).

19. 42 U.S.C. § 9601(23), ELR STAT. CERCLA 8.

20. Note that "cleanup of released hazardous substances" is also listed under the definition of remedial action. Id. § 9601(24), ELR STAT. CERCLA 8.

21. See, e.g., Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1414, 22 ELR 20163, 20166 (D. Md. 1991).

22. See, e.g., South Macomb Disposal Auth. v. U.S. Environmental Protection Agency, 681 F. Supp. 1244, 1246, 18 ELR 20841, 20842 (E.D. Mich. 1988).

23. See New York v. Shore Realty Corp., 759 F.2d 1032, 1040, 15 ELR 20358, 20360-61 (2d Cir. 1985).

24. 42 U.S.C. § 9601(24), ELR STAT. CERCLA 8.

25. Id.

26. See, e.g., Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1576, 19 ELR 20472, 20477-78 (E.D. Pa. 1988).

27. See, e.g., General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1419, 21 ELR 20453, 20454-55 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991); Kelley v. E.I. duPont de Nemours & Co., 786 F. Supp. 1268, 1276, 22 ELR 21040, 21043-44 (E.D. Mich. 1992).

28. Cf. Versatile Metals, 693 F. Supp. at 1578 n.6, 19 ELR 20472, at 20478 n.6 (cap could be either removal or remedial depending on whether its purpose was abatement or permanent cover).

29. 42 U.S.C. § 9601(23)-(24), ELR STAT. CERCLA 8; 40 C.F.R. § 300.415(d).

30. See, e.g., General Elec., 920 F.2d at 1419, 21 ELR at 20454-55.

31. See, e.g., id. at 1419, 21 ELR at 20454-55 ("Any distinction between 'excavation' of contaminated soils and 'removal' of contaminated soils is one that eludes us."); BCW Assocs., Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL 102641, at *18-19 (E.D. Pa. Sept. 29, 1988) ("it cannot be ignored that the word 'removal' is descriptive as well as denotative").

32. 42 U.S.C. § 9601(24) (1985) (amended in 1986 by SARA, ELR STAT. CERCLA 8.

33. See Reading Co. v. City of Philadelphia, No. 91-2377, 1993 WL 175382, at *24 (E.D. Pa. May 13, 1993) (response "may well be characterized as a removal action" because off-site transportation excluded from remedial definition); BCW Assocs., 1988 WL 102641, at *19 ("off-site actions are more easily characterized as removal actions").

34. See, e.g., Con-Tech Sales Defined Benefit Trust v. Cockerham, No. 87-5137, 1991 WL 209791, at *7 (E.D. Pa. Oct. 9, 1991) (holding that need for speedy action most important indicator of removal action); Carlyle Piermont Corp. v. Federal Paper Bd. Co., 742 F. Supp. 814, 820-21 (S.D.N.Y. 1990) (immediacy of threat is key determinant).

35. Versatile Metals, 693 F. Supp. 1563, 1577, 19 ELR 20472, 20478 (E.D. Pa. 1988).

36. Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373, 385, 21 ELR 20297, 20303 (E.D.N.C. 1990). Thus, the cleanup of a contaminated lagoon was classified as remedial because there was no "immediate threat of harm." Id.

37. Con-Tech Sales, 1991 WL 209791, at *7.

38. 40 C.F.R. § 300.415.

39. Id. at § 300.415(b)(2).

40. See, e.g., Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1577, 19 ELR 20472, 20478 (E.D. Pa. 1988); Metropolitan Serv. Dist. v. Oregon Metal Finishers, Inc., 32 Env't Rep. Cas. (BNA) 1102, 1103-04 (D. Or. 1990).

41. See, e.g., General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1416-17, 21 ELR 20453, 20453-54 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991) (removal begun six years after release discovered).

42. See Office of Technology Assessment, U.S. Congress, Coming Clean: Superfund Problems Can Be Solved at 12-13 (at average site, RI/FS does not begin until four or five years after site discovery; complete cleanup can take 10 years or more).

43. See 50 Fed. Reg. 5862-01 (Feb. 12, 1985) (noting that failure to undertake removal action can result in increase in cost of later response actions).

44. See, e.g., BCW Assocs., Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL 102641, at *19 (E.D. Pa. Sept. 29, 1988) (deeming an action a removal because, although "a release was not imminent, the threat of a release was relatively immediate").

45. See, e.g., id. (looking at several factors, including the cost, complexity, and duration of the cleanup).

46. Id.

47. See Con-Tech Sales Defined Benefit Trust v. Cockerham, No. 87-5137, 1991 WL 209791, at *7 (E.D. Pa. Oct. 9, 1991) (excavation of waste may be a "removal" even though it permanently remedied the site); Kelley v. E.I. duPont de Nemours & Co., 786 F. Supp. at 1273, 1277 (excavation of waste was removal action even though no further cleanup necessary).

48. Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1578, 19 ELR 20472, 20479 (E.D. Pa. 1988).

49. BCW Assocs., Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL 102641, at *19 (E.D. Pa. Sept. 29, 1988) (the court relied on EPA's own benchmark for the appropriate length of removal action).

50. Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373, 386, 21 ELR 20297, 20303-04 (E.D.N.C. 1990); see also U.S. Steel Supply, Inc. v. Alco Standard Corp., No. 89-C20241, 1992 WL 229252, at *10 (N.D. Ill. Sept. 9, 1992) (cost and duration important factors) (citing 40 C.F.R. § 300.65(b)(3)).

51. S. REP. NO. 848, at 54 (remedy "refers to potentially more costly, long-lasting response" while "removal is limited in time and money").

52. Channel Master, 748 F. Supp. at 385, 21 ELR at 20303.

53. See, e.g., General Elec. Co. v. Litton Indus. Automation Sys., 920 F.2d 1415, 1416-17, 21 ELR 20453, 20453-54 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991) (cleanup activity initiated six years after release discovered); Con-Tech Sales Defined Benefit Trust v. Cockerham, No. 87-5137, 1991 WL 209791, at *8 (E.D. Pa. Oct. 9, 1991) (nine-month delay).

54. 40 C.F.R. § 300.430(a)(2).

55. 42 U.S.C. § 9601(23); see United States v. Kramer, 757 F. Supp. 397, 437, 21 ELR 20879, 20897-98 (D.N.J. 1991); Barmet Alum. Corp. v. Thomas, 730 F. Supp. 771, 772, 20 ELR 20753, 20754 (W.D. Ky. 1990), aff'd, 927 F.2d 289, 21 ELR 20850 (6th Cir. 1991); South Macomb Disposal Auth. v. U.S. Environmental Protection Agency, 681 F. Supp. 1244, 1246, 18 ELR 20841, 20612 (E.D. Mich. 1988).

56. Cooper Indus., Inc. v. U.S. Environmental Protection Agency, 775 F. Supp. 1027, 1038, 22 ELR 20608, 20612 (W.D. Mich. 1991).

57. Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1509, 23 ELR 21061, 21065 (E.D. Wis. 1992).

58. Coming Clean: Superfund Problems Can Be Solved, supra note 42, at 12-13 (at average site, RI/FS does not begin until four or five years after site discovery).

59. 42 U.S.C. § 9613(g)(2)(A)(1988), ELR STAT. CERCLA 32. If "physical on-site construction" of the remedial action is begun within three years of the completion of the removal action, then the six-year limitation period for remedial actions applies to all costs. Id. § 9613(g)(2)(B), ELR STAT. CERCLA 32.

60. See Kelley v. E.I. duPont de Nemours & Co., 786 F. Supp. 1268, 1276-78, 22 ELR 21040, 21043-45 (holding that RI/FS did not extend removal completion date).

61. Office of Solid Waste and Emergency Response, U.S. EPA, Cost Recovery Actions/Statute of Limitations, Directive No. 9813.9, at 2 (June 12, 1987).

62. 57 Fed. Reg. 34742, 34751 (proposed Aug. 6, 1992).

63. See, e.g., Con-Tech Sales Defined Benefit Trust v. Cockerham, No. 87-5137, 1991 WL 209791, at *7 (E.D. Pa. Oct. 9, 1991) (need for speedy action most important indicator of removal action); Carlyle Piermont Corp. v. Federal Paper Bd. Co., 742 F. Supp. 814, 820-21 (S.D.N.Y. 1990) (immediacy of threat key determinant).

64. See, e.g., Gussin Enterprises, Inc. v. Rockola, No. 89-C742, 1993 WL 114643, *4 (N.D. Ill. Apr. 13, 1993) (emphasizing permanent nature of action in classifying it remedial); U.S. Steel Supply, Inc. v. Alco Standard Corp., No. 89-C20241, 1992 WL 229252, at *10 (N.D. Ill. Sept. 9, 1992) (cost and duration of action important factors).

65. See, e.g., Reading Co. v. City of Philadelphia, No. 91-2377, 1993 WL 175382, at *24-25 (E.D. Pa. May 13, 1993); BCW Assocs., Ltd. v. Occidental Chem. Corp., No. 86-5047, 1988 WL 102641, at *18-19 (E.D. Pa. Sept. 29, 1988) ("The better approach is to view the action taken by the plaintiffs in light of several factors"); Tri-County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 993 (E.D. Pa. 1992).

66. See 40 C.F.R. § 300.415 (removal action appropriate when prompt response required).

67. For an in-depth examination of this two-category system and the policy reasons for abandoning it, see Anderson, supra note 11.