ELR Citation: ELR 20279
No(s). 07-0541 (E.D.N.Y. Dec 2, 2009)

A district court held that the United States' cost recovery action against the current owner of a hazardous waste site in New York is time barred under CERCLA. The owner argued that the government's cleanup activities were "remedial" actions subject to CERCLA's six-year statute of limitations, which runs from the initiation of physical onsite construction. Conversely, the government argued that its cost recovery claims relate to an ongoing "removal" action, the limitations period for which ends three years after the completion of the removal. Although the government's characterization of its response action as a removal action is entitled to some deference, it is clear from the administrative record that the government's actions were intended to constitute a long-term, if not permanent, remedy to the contamination as opposed to a short-term remedy. Because removal actions generally are short-term cleanup actions whereas remedial actions involve long-term, permanent containment efforts intended to prevent or minimize the release of hazardous substances, the response activities in this case constitute a remedial action. Accordingly, because the government did not file its cost recovery action until seven years after it began physical remediation activities at the site, its claims are time barred. But the government's enforcement claim seeking civil penalties based on the owners' failure to comply with an administrative order are not time barred.