ELR Citation: ELR 20538
No(s). s. 92-2053, -2054 (6th Cir. Feb 23, 1994)

The court holds that the state of Michigan's efforts to clean up a contaminated landfill, which took place over several years and in several phases, constituted a single removal action for purposes of the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) statute of limitations, and that the state is thus entitled to recover costs it incurred in a phase of the removal that was completed more than three years before the state brought suit. In 1985, Michigan contracted for the physical removal of surface waste at the landfill, and at about the same time contracted for a remedial investigation/feasibility study (RI/FS) to be conducted at the site. The surface removal was completed in 1986, but the RI/FS continued through 1987. Within three years of completion of the RI/FS, but not the surface removal, the state brought suit under CERCLA §107 against two companies that had disposed of hazardous waste at the landfill, seeking to cover its response costs. The court first holds that the surface removal and the RI/FS constitute a single removal action for purposes of CERCLA §113's three-year statue of limitations. Although authority for emergency physical removal and RI/FS activity are codified at different parts of the Act, the sections are interrelated, implying that Congress expected the two types of activity to be taken in tandem. The U.S. Environmental Protection Agency's (EPA's) allocation of responsibility for the two types of actions to different offices and the fact that it codified the regulations governing them separately should not be construed to give meaning to statutory language enacted by Congress. Additionally, an 1987 EPA policy that the two types of activities should be treated separately for purposes of the statute of limitations is not entitled to deference because it was not in long use and has since been superseded. The court holds that the term "removal action" should be given a broad interpretation. The term "removal" is defined broadly in the Act to include both physical removal and RI/FS activities, and while "removal action" is not defined, it is unlikely that Congress intended the term to have some unique, but undefined, meaning. The court next holds that declaratory judgment on the companies' liability for future response costs at the site was proper and does not violate the constitutional case-or-controversy requirement because it is more likely than not that Michigan will have to expend resources in the future.

Counsel for Plaintiffs
Mark Haag
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Jerry Anderson
Drake University Law School
27th St. & Carpenter, Des Moines IA 50311
(515) 271-2066

Before: KEITH, NELSON, and RYAN, Circuit Judges.