ELR Citation: ELR 20587
No(s). 87-1799-T (D. Mass. Nov 7, 1994)

The court holds that a state environmental agency may recover from an electric company all response costs the agency incurred under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state law to clean up a hazardous waste site in Attleboro, Massachusetts. The court first holds that the response action was a removal action that the agency chose according to criteria outlined in the applicable national contingency plan (NCP) and classified as a removal action on the basis of information contained in the administrative record at the time. Because a cleanup can be both a removal action and a remedial action, the agency's preparation and implementation of an initial remedial measure does not preclude the existence of a removal action. The court notes that portions of the 1982 NCP intended to guide the selection of an appropriate response plan were necessarily and deliberately vague. And although neither the size of the operation nor the amount of time that separates identification from cleanup are dispositive of the classification of a response operation, both factors in this case fell well within the range of reported removal actions. The court holds that because removal actions do not require formal consideration of more cost-effective cleanup alternatives, the agency's failure to conduct such an inquiry does not make its selected action arbitrary or capricious. The administrative record suggests that the agency's decision to undertake a removal action at the site was reasonable on the basis of information available to the agency at the time. Thus, the court holds that the agency acted within its discretion in selecting and implementing the plan in accordance with the standards set forth under CERCLA and the applicable NCP.

The court next holds that it is unnecessary to decide the standard against which it should judge the agency's actions under Massachusetts' state-law analog to CERCLA, because the electric company failed to establish that the agency's expenditures were inconsistent with the NCP. Even if recovery under state law were dependent on compliance with the federal NCP, the court has already found that the agency complied with the applicable NCP in carrying out the cleanup operation at a related site. Thus, the court grants summary judgment for the state on its state-law claim. The court next holds that because the electric company is liable for the full extent of response costs under both federal and state law, the state may use the interest rate under state debt law rather than under CERCLA to calculate the amount of prejudgment interest to which it is entitled.

[A related decision in this litigation is published at 22 ELR 20642.]

Counsel for Plaintiff
Robert W. Ritchie, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2200

Counsel for Defendants
Stephen M. Leonard
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Ctr., Boston MA 02111
(617) 542-6000