The Site Cleanup Processes
| Author | Allison Rumsey/Michael Daneker |
| Pages | 41-67 |
Page 41
IV. The Site Cleanup Processes
A. Removal Versus Remediation Overview
As a very broad generalization, there are two approaches for cleaning up a contaminated site: (1) a removal
action, intended to be a short-term cleanup where there is a need for quick action, and (2) remediation,
a process that extends over yea rs and follows a fairly strict regulatory protocol that may include site list-
ing on the National Priorities List (NPL), and a cleanup developed t hrough a remedia l investigation and
feasibility study (RI/FS) process and carried out under the terms of an ocia l record of decision (ROD)
and pursuant to a Consent Decree. In practice, the two approaches are not mutually exclusive. e U.S.
Environmental Protection Agency (EPA) may order a removal action to abate an alleged imminent and
substantial endangerment pursuant to §106 and subsequently require a remediation following the process
set forth in §104. e term “response action” encompasses both removal a nd remedial actions.1 Section
106 provides two mechanisms for the EPA to “secure such relief as may be necessary to abate such danger
or threat.”2
Section 106 provides, in part:
In addition to any other action taken by a State or local government, when the President determines that there
may be an imminent and substantial endangerment to the public health or welfare or the environment because
of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General
of the United States to secure such relief a s may be necessar y to abate such danger or threat, and the di strict
court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as
the public interest and the equities of the case may require. e President may also . . . take other action under
this section including , but not limited to, issuing such orders as may be necessar y to protect public health and
the environment.3
e rst sentence of §106(a) authorizes the EPA to seek an injunction in federal district court, “to grant
such relief as the public interest and the equities of the case shall require.”4 e second sentence of §106(a)
authorizes the EPA to issue such unilateral administrative orders “as may be necessary to protect public health
and welfare and the environment.”5 Removal actions6 are typically described as time-sensitive responses to
public health threats for which the EPA is granted considerable leeway in structuring the cleanup.7 Removal
1. 42 U.S.C. §9601(25).
2. Id. §9606(a). e language of §106 does not create an action for private parties, and courts have consistently refused to recognize an implied
private cause of action under §106. Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 14 ELR 20376 (C.D. Cal. Mar. 5, 1984), a’d, 840 F.2d
691, 18 ELR 20470 (9th Cir. 1988); REV 973, LLC v. Mouren-Laurens, No. CV 98-10690 AHM, 2010 WL 383615, at *1 n.1 (C.D. Cal.
Jan. 25, 2010).
3. 42 U.S.C. §9696(a).
5. 42 U.S.C. §106(a).
6. “e terms ‘remove’ or ‘removal’ means the cleanup or removal of released hazardous substances from the environment, such actions as may
be necessary 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, which may
otherwise result from a release or threat of release.” 42 U.S.C. §9601(23). See, e.g., Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d
1019, 1024 (8th Cir. 1998) (describing “removal actions” as “those taken to counter imminent and substantial threats to public health and
welfare”).
7. See, e.g., Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019, 1024 (8th Cir. 1998) (describing “removal actions” as “those taken to
counter imminent and substantial threats to public health and welfare”).
Page 42 Superfund Deskbook
actions can be funded by either a potentially responsible party (PRP) or by the Superfund. Removal actions
nanced by the Superfund rather than a private party generally are required to “be terminated after $2 mil-
lion has been obligated for the action or 12 months have elapsed from the date removal activities begin on-
site.”8 ese limitations are not, however, inviolate. e EPA may exceed this cap if one of two exemptions
applies: (1) there is an immediate risk to public health or welfare of the United States or the environment;
continued response actions are immediately required to prevent, limit, or mitigate an emergency; and such
assistance will not otherwise be provided on a timely basis; or (2) continued response action is otherwise
appropriate and consistent with the remedial action to be taken.9
Remedial actions, in contrast, are more permanent remedies to threats for which there is no need for an
urgent response but which must follow more elaborate procedures. As set forth in §104:
Whenever (A) any haz ardous substance is released or there is a substantial threat of such a release into the
environment, or (B) there is a release or substantial threat of release into the environment of a ny pollutant
or contamina nt which may present a n imminent and sub stantial danger to the public health or welfare, the
President is authorized to act, consiste nt with the nationa l contingency plan, to remove or arrange for t he
removal of, and provide for remedial action relating to such haza rdous substance, pollutant, or contaminant at
any time (including its removal from a ny contaminated nat ural resource), or take any other response measure
consistent with the national contingency plan which the President deems necessary to protect the public health
or welfare or the environment.10
e distinction between removal a nd remedial actions is critical because “[b]oth types of actions have
substantial requirements, but the requirements for remedial actions are much more detailed and onerous.”11
For example, remedial actions are only eligible for Superfund nancing when the site is listed on the
National Priorities List.12
B. The National Contingency Plan
As a preliminary mat ter, all response actions, whether a removal or remediation, follow the National Oil
and Hazardous Substances Pollution Contingency Plan, better known as the National Contingency Plan
(NCP). e NCP guides the federa l government’s responses to releases of hazardous substances.13 e
NCP provides for the overall coordination of federal, state, and local government response actions, and
species priorities and responsibilities. It is complemented by a network of Regional Contingency Plans
and Area Contingency Plans.14 In CERCLA removal a nd remedial actions, t he boundaries of liabilit y are
determined by consistency or inconsistency with the NCP.
1. History of the National Contingency Plan
e NCP was rst published in 1968, prompted by a 1967 oil spill that occurred when the oil tanker SS
Torrey Canyon ran aground o the coast of t he United Kingdom. Owing to its origins, the NCP initially
focused on d ischarges of oil. In 1972, with the passage of the Clean Water Act, Congress ordered the
NCP expanded to address discharges of other hazardous substa nces.15 e NCP was further broadened in
1980, with the passage of CERCLA, to address responses to the release of hazardous substances and, thus,
8. 40 C.F.R. §300.415(b)(5).
9. Id.; see also 42 U.S.C. §9604(c)(1).
10. See 42 U.S.C. §9604(a)(1); 42 U.S.C. §9601(24) (“e terms ‘remedy’ or ‘remedial action’ [mean] those actions consistent with [a] perma-
nent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the
environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present
or future public health or welfare or the environment.”); see, e.g., Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th
Cir. 1999) (“In broad contrast, a remedial action seeks to eect a permanent remedy to the release of hazardous substances when there is no
immediate threat to the public health.”).
11. Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1136 (10th Cir. 2002).
14. See 40 C.F.R. §300.210; In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., No. 2179, 2012 WL 5960192, at *7 (E.D. La. Nov.
12, 2012).
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