Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself. The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example.
Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997. Fluor’s remedial action plan was not approved until 2011 and a modified RAP was approved in 2014.
As readers here will know, CERCLA provides that claims based on removal actions must be brought within three years of completion of the removal action, while claims based on remedial actions must be brought within six years of commencement of on-site construction. The question in California River Watch was of course whether Fluor’s treatment system was a removal action or a remedial action. The jurisprudential answer here was easy – 9th Circuit precedent holds that, by definition, a remedial action cannot start until after the RAP has been approved; thus, what Fluor was doing could not have been a remedial action.
I’ll also acknowledge that there are good policy reasons why claims such as Fluor’s should not be barred.
I get all that. Still, as the Court acknowledged:
Removal actions are typically described as “time sensitive responses to public threats. … “Removal refers to short-term action taken to halt the immediate risks posed by hazardous wastes.”
Given the 9th Circuit precedent, my only complaint with the court here is its failure even to acknowledge the irony in finding that a treatment system that has been in operation for 18 years qualifies as “short term”. We can all bemoan the extent that the words of the statute have to be tortured in order to achieve desired policy outcomes.
It’s worth noting that the Second Circuit, in New York State Electric and Gas Corporation v. FirstEnergy Corporation and New York v. Next Millenium Realty, has navigated an alternative – and perhaps less ironic – route to accomplish this same result, by distinguishing removal actions, not as short term measures, but as measures that do not effect a permanent elimination of the source of contamination.
(And, yes, I know that this is the second post in a week which has required an irony alert. Occupational hazard, I think.)
Nice post. Many years ago I dealt with the “removal action” vs .”remedial action” from a bonding and insurance perspective. A hard and fast barometer identifying when a response activity crosses the line from one to the other appears to be wishful thinking.
Thanks. I’m sure you’re right.