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UNITED STATES v. PETERSEN SAND & GRAVEL

December 26, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
PETERSEN SAND AND GRAVEL, INC., Defendant.


Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

MEMORANDUM OPINION AND ORDER

 Plaintiff United States of America, through the Environmental Protection Agency (collectively, "the EPA") seeks to recover from defendant, Petersen Sand and Gravel, Inc. ("Petersen") costs incurred as a result of an environmental study ("the removal action") conducted by the EPA at a site once owned and operated by Petersen ("the Petersen site"). The EPA brings this action pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. Petersen moves for summary judgment on the ground that this action is barred by the applicable statute of limitations.

 BACKGROUND

 The facts relevant to the determination of this motion are undisputed. In December 1986, the EPA issued a work plan for a remedial investigation and feasibility study for the environmental condition of the Petersen site. *fn1" The purpose of the remedial investigation was to collect and analyze data concerning the environmental condition of the Petersen site and to determine whether there was any significant environmental risk posed by chemical contamination. 40 C.F.R. § 300.430(d)(1). If the remedial investigation uncovered any significant environmental problems, then a feasibility study would be conducted in order to develop and evaluate alternative remedies. 40 C.F.R. § 300.430(e)(1).

 On April 4, 1988, the EPA issued its final remedial investigation report. The report concluded that the chemical contaminants at the site presented little risk to public health and the environment. *fn2" As a result of this finding, the EPA chose the "no action" remedial alternative and decided that a feasibility study was not necessary. On September 14, 1988, the EPA issued its formal decision, stating that the selected remedial alternative for the Petersen site is "no further action." *fn3" The EPA filed this lawsuit to recover its costs for these actions on September 13, 1991.

 DISCUSSION

 Summary judgment must be granted when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360 (7th Cir.) (per curiam), cert. denied, 484 U.S. 820 (1987). The sole issue is whether this action is barred by the applicable statute of limitations. Both parties agree that the remedial investigation and feasibility study constitutes a "removal action" within the meaning of CERCLA, and that the applicable statute of limitations is codified at 42 U.S.C. § 9613(g)(2)(A) ("§ 9613"). That statute states in relevant part:

 An action for recovery of the costs referred to in section 9607 or this title must be commenced --

 (A) for a removal action, within 3 years after completion of the removal action . . . .

 Petersen asserts that the removal action was completed when the remedial investigation report was issued on April 4, 1988. Since this action was not filed until September 13, 1991, Petersen argues that this action is time-barred by § 9613. In response, the EPA asserts that the removal action was not completed until its decision was issued on September 14, 1988. On this basis, the EPA argues that this action is timely under § 9613.

 CERCLA does not define the terms "completion" or "removal action." However, CERCLA does define "removal" as follows:

 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). Clearly, the term "removal action" encompasses more than simply physically removing contaminants from a site. It also involves the assessment and evaluation of environmental risks posed by contaminants. However, it is not clear from the statute whether a remedial investigation and feasibility study removal action is completed when the remedial investigation or feasibility ...


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