ELR Citation: ELR 21042
No(s). 97-11377-JLT (D. Mass. Jan 26, 1999)

The court holds untimely a U.S. Environmental Protection Agency (EPA) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action for removal costs incurred at the Yankee Chemical Corporation site in Massachusetts. After performing a removal in 1993, EPA closed the site, but left five drums onsite. The site was vandalized 18 months later, and EPA then conducted further removal actions. Thereafter, EPA sought recovery of its costs for the entire cleanup process. The court first holds that the circumstances surrounding EPA's cleanup process warrant a finding of two separate and distinct removal actions. EPA's closing of the site in 1993 evidences completion of the first removal action. EPA also transferred responsibility over the site to the state. Further, EPA itself treated the two removal actions as separate. The court also notes that EPA's failure to comply with the national contingency plan (NCP) indicates that there were two removal actions. The NCP requires EPA to complete a removal action within 12 months. Had the site not been vandalized 18 months after its closing, creating an emergency situation involving new threats of release, EPA would not have been able to fund the final removal activity at the site. Therefore, the court holds that the costs associated with the first removal are barred.

Counsel for Plaintiff
Donald G. Frankel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Richard E. Bachman
Law Offices of Richard E. Bachman
P.O. Box 355, E. Bridgewater MA 02331
(508) 238-3345