was no physical cleanup or action memo in this case. The policy memorandum also appears to treat remedial investigation and feasibility study removal actions separately, and provides no guidance on when a remedial investigation and feasibility study removal action is considered to be "complete."
In support of its position that the remedial investigation and feasibility study removal action was not complete until the EPA decision was issued, the EPA cites the only two cases that have addressed this issue. In United States v. R.A. Corbett Transport, Inc., No. M-89-165-CA, slip op. at 1-2 (E.D. Tex. May 9, 1990), the defendant moved for summary judgment on the ground that the EPA's action was time-barred under § 9613.
The court decided that the remedial investigation conducted between December 1987 and May 1988, and the issuance of the EPA decision on September 16, 1988, was a single "removal action" under the meaning of CERCLA. The court then concluded:
The present suit was filed on October 13, 1989, approximately thirteen months following the [EPA decision]. Said suit is, therefore, within the three-year limitation set forth in 42 U.S.C. § 9613(g)(2).
Id. at 2. Thus, the Corbett court considered the issuance of the EPA decision as the completion of the remedial investigation removal action and the commencement of the running of the statute of limitations.
The only other case to address this issue is United States v. Jack Allen, No. 90-2093, slip op. at 11-12 (W.D. Ark. November 6, 1990).
In Jack Allen, the EPA sought to recover its costs for a removal action. In response to the EPA's motion for summary judgment, the defendant argued that the EPA's action was time-barred under § 9613 because the EPA's on-site activity had concluded on April 17, 1987, and the complaint was not filed until April 23, 1990. In response, the EPA asserted that the removal action was not complete until the EPA made a determination that further on-site activity was not necessary. The court held:
Clearly, the term removal (as defined by CERCLA) is not limited to on-site activity and includes the time needed to dispose of the removed material as well as the time needed to evaluate the need for further activity. Defendants have not alleged that the EPA unnecessarily delayed in making the determination that no further on-site activity was needed. We, therefore, conclude that this suit was timely filed under 42 U.S.C. § 9613(g)(2)(A).
Id. at 12. Thus, Jack Allen appears to support the EPA's contention that the remedial investigation and feasibility study removal action was not complete until the EPA formally determined that no further on-site activity was needed by issuing its decision. Finally, the EPA cites its Superfund Program Management Manual, Fiscal Year 1992, Volume 2 ("the Superfund Manual"), which states that the remedial investigation and feasibility study is complete with the signature of the EPA decision.
Petersen is unable to cite any authority to the contrary. Petersen does argue, however, that the Superfund Manual relies upon current EPA regulations that were not in effect in 1988, when the remedial investigation took place. Petersen asserts that the applicable EPA regulations in 1988 ("the 1988 regulations") made no mention of an EPA record of decision, and thus the decision cannot be considered to have been an integral part of the remedial investigation and feasibility study process in 1988.
Petersen misconstrues these regulations. Although it is true that the term "record of decision" does not formally appear in the 1988 regulations, the 1988 regulations clearly spell out the remedial investigation and feasibility study process, culminating in the EPA's formal "selection of a remedy." See former CFR 40 CFR 300.68(d)-(i). This formal "selection of a remedy" is, of course, the record of decision. Courts that have interpreted both the current regulations and the 1988 regulations have consistently held that the remedial investigation and feasibility study process involves three steps. First, the EPA prepares its remedial investigation and feasibility study report. However, this report is only a recommendation. In the second step, the EPA evaluates the remedial investigation and feasibility study report and formally decides the appropriate remedy for the site in question. Finally, the EPA publishes its remedy selection by issuing a record of decision. The EPA decision signifies the EPA's formal disposition. Thus, the record of decision serves as the EPA's final action in the remedial investigation and feasibility study removal action process. See e.g. In re Combustion Equipment Associates, Inc., 838 F.2d 35, 36 (2nd Cir. 1988); In re Chateaugay Corp., 112 Bank. 513, 518 (S.D.N.Y. 1990) (EPA completes three steps before undertaking remedial action: (1) prepares remedial investigation and feasibility study; (2) selects an appropriate remedy; and (3) issues a record of decision); United States v. Rohm & Haas Co., 721 F. Supp. 666, 674 (D.N.J. 1989) (after remedial investigation and feasibility study is completed, EPA then chooses a remedial alternative and issues a record of decision); O'Leary v. Moyer's Landfill, Inc., 677 F. Supp. 807, 811 (E.D. Pa. 1988) (same); Cabot Corp. v. United States Environmental Protection Agency, 677 F. Supp. 823, 825 (E.D. Pa. 1988) (same).
Whenever a defendant seeks to apply a statute of limitation in order to bar a governmental action, the statute of limitation must be strictly construed in favor of the government. United States v. Mottolo, 605 F. Supp. 898, 902 (D. N.H. 1985). In addition, the remedial intent of CERCLA requires a liberal statutory construction in order to avoid frustrating its purpose. Accordingly, § 9613 must be afforded a broad and liberal construction so as to avoid limiting the liability of those responsible for cleanup costs beyond the limits expressly provided. Id.; United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1110-1112 (D. Minn. 1982).
For the above reasons, the court concludes that the issuance of the record of decision is an integral part of the remedial investigation and feasibility study process. Consequently, the statute of limitations begins running when the remedial investigation and feasibility study removal action is completed by the EPA's issuance of its record of decision. The EPA decision was issued on September 14, 1988, and the complaint was filed on September 13, 1991. Therefore, this action is timely under § 9613.
Petersen has failed to carry its burden of demonstrating that it is entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is denied.
Suzanne B. Conlon
United States District Judge