If your or your client’s facility has a release or threatened release of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607 (CERCLA), knowing how removal and remedial actions differ and how the National Contingency Plan (NCP) affects the cost recovery process can determine which party is responsible for payment or repayment and when claims must be filed.

CERCLA distinguishes between “removal” and “remedial” actions through purpose, duration and response. Both aim to address the release of hazardous substances; however, removal actions are generally time-sensitive and target imminent threats to human health, while remedial actions are designed as long-term, permanent solutions, typically for situations where no immediate threat exists.

Most notably, courts have recognized that the inquiry into remedial versus removal is fact specific—that the “tangled language of CERCLA hardly lends itself to clearcut distinctions between the two types of actions.” U.S. v. W.R. Grace & Co., 429 F.3d 1224, 1232 (9th Cir. 2005). Remedial and removal actions are defined in statute and interpreted through case law and on a factual basis.

The classification of the action will dictate different procedural requirements under the NCP and will affect the applicable statute of limitations. 

Generally, the statute of limitations for a removal action is three years after completion of the removal action and the statute of limitations for a remedial action is six years after the initiation of physical on-site construction of the remedial action absent any exceptions.

Removal actions are “typically described as time-sensitive responses to public health threats” W.R. Grace & Co., 429 F.3d at 1228. See Carson Harbor Village, Ltd. v. Unocal Corp. (C.D. Cal. 2003) 287 F.Supp.2d 1118, 1155, aff'd sub nom. Carson Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260 (describing “removal actions as those taken to counter imminent and substantial threats to public health and welfare); see also Valbruna Slater Steel Corporation v. Joslyn Manufacturing Company (7th Cir. 2019) 934 F.3d 553, 564 (holding a removal action is usually one that: is designed as an interim or partial fix; performed in response to an immediate threat; is short in length; does not address the entire problem; and/or does not address the root of the problem.”

To be formally labeled as a removal action, the NCP requires a party undertaking removal to conduct a site evaluation and the “lead agency shall first review the removal site evaluation, any information produced through a remedial site evaluation, if any has been done previously, and the current site conditions, to determine if removal action is appropriate.” 40 C.F.R. § 300.415(a)(1); see also 40 C.F.R. § 300.415(b)(2) (listing several factors for determining the appropriateness of a removal action.) “Because of the exigency inherent in removal actions, the statutory requirements for NCP compliance relative to [remedial actions] are somewhat relaxed.” Carson Harbor Village, Ltd., 287 F.Supp.2d at 1155, aff'd sub nom. Carson Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260. 

While removal actions are implemented in essence as a short-term solution, removal actions can also provide permanent solutions. See id., (holding that construction of concrete cap to confine pollutants was not a “remedial” action, even though “fix may have been permanent,” because it was not “comprehensive” enough to “substantially resolve” the “bulk of site's ongoing pollution problems.”).

Typically, under CERCLA, there is a three-year statute of limitations to recover costs after the completion of the removal action, unless an exception under 42 U.S.C. § 9613(g)(2)(B) applies. Section 9613(g)(2)(b) provides that “if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action.”

For purposes of triggering the statute of limitations, the general rule is that all removal actions performed at a single site constitute a single indivisible removal action. As such, the statute of limitations begins to run only at the conclusion of the entire removal phase. State of Calif. Dept. of Toxic Substances Control v. Alco Pac., Inc. (C.D. Cal. 2004) 308 F.Supp.2d 1124, 1133. See e.g., Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842 (6th Cir. 1994) (holding that removal activities from 1984 to 1986 and the later removal activity in 1987 were held to be one action under section 9613(g)(2)(A)). Because clean-up actions occur in multiple phases, it would go against the purpose of CERCLA to “require suit on each arguably independent removal activity.” Alco Pac., Inc., supra, 308 F.Supp.2d at 1133.

Remedial actions are described as permanent remedies to threats for which an urgent response is not warranted. W.R. Grace & Co., 429 F.3d at 1228. See Carson Harbor Village, Ltd., 287 F.Supp.2d at 1155, aff'd sub nom. Carson Harbor Village v. County of Los Angeles (9th Cir. 2006) 433 F.3d 1260 (describing a remedial action as designed to achieve a permanent remedy and to address a non-urgent situation.); see also OBG Technical Services, Inc. v. Northrop Grumman Space & Mission Systems, Corp. (D. Conn. 2007) 503 F.Supp.2d 490, 525 (describing the cleanup measures as remedial in nature because there was no imminent threat of harm, the response lasted 14 years, and the response was permanent in nature).

A party initiating a remedial action must conduct a site evaluation and complete a “feasibility study before selecting the appropriate remedy,” which includes satisfying other requirements. 40 C.F.R. § 300.430. In addition, 40 C.F.R. § 300.430 lists requirements for a selection of remedy, including consideration of effectiveness, permanence and cost.

By statutory definition, remedial actions must be “consistent with permanent remedy taken instead of or in addition to removal actions.” 42 U.S.C. § 9601(24). For an action to be “consistent with permanent remedy,” a permanent remedy must already have been adopted. “Neither party can know for sure whether a given action is consistent with permanent remedy until that permanent remedy is determined.” State of Calif. ex rel. Calif. Dept. of Toxic Substances Control v. Neville Chem. Co. (9th Cir. 2004) 358 F.3d at 667. Usually, a permanent remedy is adopted when a remedial action plan is approved. Id. As such, if an action takes place prior to the implementation of a permanent remedy, for an immediate result, or on a temporary basis, it is a removal action. Id.

Under CERCLA, there is a six-year statute of limitations to recover costs in a remedial action. 42 U.S.C. §  9607(g)(2).  The statute of limitations begins to run after the initiation of physical on-site construction of the remedial action, except that if the remedial action is initiated within three years after completion of the removal action, costs incurred in the removal action may be recovered in the remedial action cost-recovery suit. Id.

A remedial action plan must be implemented prior to the start of physical on-site construction. See Neville Chemical Co. 358 F.3d at 667 (explaining how the Department could not have brought suit for costs of remedial action at the time the Defendant began commencing work because at that time, neither party could have known if that action would eventually be “consistent with permanent remedy,” because no final remedial action plan had been decided upon at that point—and subsequently, those actions were categorized as removal actions for statute of limitation purposes. Id. 

Most circuits have agreed that remedial activities at a site are a single remedial action for the purposes of the statute of limitations. See New York State Elec. and Gas Corp. v. FirstEnergy Corp. (2d Cir. 2014) 766 F.3d 212, 236 (holding that all three remedial actions were a part of one remedial action because “there can only be one remedial action at any given site.” See Colorado v. Sunoco, 337 F.3d 1233, 1241 (10th Cir. 2003) (“In our view, this language indicates there will be but one ‘removal action’ per site or facility, as well as a single ‘remedial action’ per site or facility.”); see Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 843 (6th Cir. 1994) (holding that all removal activity should be considered part of one removal action because “[i]t is simply inconsistent with the[ ] ‘essential purposes' [of CERCLA] to require suit on each arguably independent removal activity”) (internal citations omitted).
 
However, there is a circuit split on how to treat remedial actions that overlap with removal actions. The U.S. Court of Appeals for the Ninth Circuit held that “even though an action can only be remedial if it is taken after the final remedial action plan is approved, that does not mean that all actions taken after the final remedial action plan is approved are remedial.” Therefore, costs occurring prior to the finalization of a remedial action plan are considered removal actions and there can be removal actions after the implementation of the remedial action plan, and all are subject to the statute of limitations for removal actions. See Neville Chemical Co. 358 F.3d  661, 663, 670, fn. 6.

Conversely, the U.S. Court of Appeals for the Second Circuit held that, where the removal and remedial actions overlap and are steps to a permanent remedy, a party may bring suit to recover the costs of all its actions—whether removal or remedial—at any time within six years after initiation of physical on-site construction of the remedial action. Schaefer v. Town of Victor, 457 F.3d 188, 210, 63 Env't. Rep. Cas. (BNA) 1333, 36 Envtl. L. Rep. 20139 (2d Cir. 2006).

The implications of an action being labeled as recovery or remedial are extensive and could result in extreme monetary consequences. It is important to plan early, document all relevant actions, and keep clear and extensive records and timelines regarding the site at issue.