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Removing Or Remediating Contamination Has Big Consequences For Your Pocketbook

What is the distinction between a "removal" action and a "remedial" action for an environmental cleanup?  While your question may be "Who cares?," the outcome of the question means millions to W.R. Grace, and if you're involved in a contaminated site, it may likewise have a significant effect on your pocketbook, too. 

The difference between the two types of action is largely regulatory, but those regulations have teeth:  a remedial action requires the USEPA to undertake a RI/FS (Remedial Investigation/Feasibility Study), solicit public comments and a host of other requirements designed to keep costs down.  On the other hand, a removal action allows the USEPA almost free reign (read that to mean spending freely from your pocketbook)  to address contamination that rises to the level of an emergency.  Typically, there are time (one year) and monetary limits ($12 million) on a removal action, but in certain instances, the USEPA can utter the "magic words" of "an imminent and substantial danger to the public health" and bypass those restrictions.

The Ninth Circuit decided this case yesterday, and it gives us a new standard to judge whether the USEPA's determination complies with CERCLA.  The Court inquired not only whether the decision to elect a removal action over a remediation action was proper, but also whether the subsequent actions were undertaken as a removal of the contamination.

Grace was not pleased with the outcome; the Court ruled against it on all counts.  Consequently, Grace is liable for the entire $52 million of removal actions taken so far, as well as all future costs incurred by the USEPA.  Reading the case will explain why both the USEPA and the Courts sided with the removal result, and certainly cleanup is needed.  Grace's point is well taken, even so:  by giving the USEPA the ability to spend Grace's money, the fox is watching the henhouse.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, December 02, 2005 at 13:20 Comments Closed (0) |
 
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