In the recent decision of United States of America v. Boston and Maine Corporation, C.A. No. 13-10087-IT (D. Mass. Sept. 22, 2016), a Massachusetts federal judge ruled that issuance of a ROD was the completion date of a removal action for statute of limitations purposes even though the actual remedial activities had been completed nearly 13 years earlier.  In reaching this conclusion, the Court also examined the often vexing distinction between removal and remedial activities and the question of what constitutes a “facility” under CERCLA. Given the posture of the case, the decision may also serve to underscore the deference courts often afford to the federal government when it, rather than a private party, is seeking to recover costs.   

The lawsuit concerned the U.S. Army’s cleanup of the Fort Devens Superfund site.  In 1993, the Army began investigating possible contamination on the site near a railroad roundhouse, which was previously owned by a predecessor of defendant Boston and Maine Corporation (“B&M”), and at a nearby pond.  Over the course of several years, the Army excavated the area around the roundhouse to remove contaminated soils, and by 2001, the Army’s contractor reported that the excavation and restoration, which had significantly reduced the potential threat to human health and the environment, would likely support a “No Further Action Decision.”  The Army then prepared a draft No Further Action report and submitted it to the EPA for comment.  The draft report was never finalized, however, because the Army opted to continue investigating possible contamination at the nearby pond adjacent to the roundhouse and the potential that the contamination was linked.  It was not until September 2015, more than a decade later, that the government issued a single record of decision (“ROD”) confirming that no further action was needed at either the roundhouse or the pond. 

Meanwhile in January 2013, two years before the ROD was issued, the Army initiated its lawsuit against B&M to recover the response costs it incurred to clean up the roundhouse.  In defense, B&M contended that the government’s lawsuit was time-barred because CERCLA imposed a three-year limitation period that started running when the excavation of the roundhouse soils was completed.  Because the roundhouse was essentially cleared of contamination by 2002, B&M argued, the clock had long since run out, precluding the government’s lawsuit.  At the close of discovery, each of the parties submitted motions for summary judgment on B&M’s statute of limitations defense. 

For purposes of analyzing the statute of limitations defense, the court first considered whether Fort Devens was a single “facility” under CERCLA as there had been response activity ongoing at the base for many years which would have triggered the running of the six-year statute of limitations for remedial actions that accrues not from completion, but from the time on-site construction begins.  The court rejected this attack by B&M, explaining  that CERCLA’s definition of  a “facility” as “any building, structure installation, equipment, pipe or pipeline” or “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed” aptly described the roundhouse site, but not the much larger Fort Devens site.  On the contrary, the court found that Fort Devens was more properly viewed as simply a large piece of land with a single owner on which there were numerous “facilities.”[1] 

Next, the court addressed which limitations period under CERCLA applied to the Army’s cleanup activities.  B&M argued that the Army’s response action could not possibly be characterized as removal action because removal actions are generally short-term solutions to immediate threats to human health and the environment, which could not have been the case here as the Army took more than seven years to investigate and remediate the contamination at the roundhouse.  The court disagreed, finding that “urgency” is not necessarily a defining factor in a removal action.  Rather, the relevant fact in the court’s analysis was the purpose of the activity.  The court emphasized its view that removal actions, such the Army’s excavation, are aimed at mitigating contamination on the site itself, which was consistent with the statutory definition of removal.  Remedial actions, in contrast, tended to focus on preventing the migration of substances off site, the court noted.

Finally, getting to the heart of the matter, after characterizing the roundhouse as a facility and the Army’s activity as a removal action, the court considered when the limitations period started running.  Under CERCLA, an action for the recovery of costs for a removal action must be commenced “within 3 years after completion of the removal action.”  B&M argued that the removal action should be considered complete when the excavation of the roundhouse ended in 2000, in contrast to the government’s contention that the removal action was not complete until the ROD was issued.  B&M countered that ROD issuance should not be determinative because the government unnecessarily delayed issuing the ROD until 2015.  The court rejected this argument, explaining that “[t]he overwhelming majority of cases addressing the issue find a removal action to be complete when final monitoring or evaluation is done, a ROD is issued, or some determination is reached that no further action is necessary.”  The court found it inconsequential as to whether there was delay because the Army was still monitoring the site and no ROD had been issued before 2015.  Moreover, the Army’s No Further Action report had only been issued in draft and never completed, allowing the court to accept the argument that, prior to the issuance of the ROD, there was no decision that further remedial action was unnecessary.  Thus, the court granted the Army’s motion for partial summary judgment on the statute of limitations defense and denied B&M’s motion.

[1] Interestingly, in a sidebar to its analysis and as apparent justification for its analysis of this issue, the court noted that, if it were to accept the idea that Fort Devens was a single “facility” under CERCLA, it would preclude the Army from pursuing a cost recovery action against B&M at any time because the company had only owned a portion of the acreage that made up Fort Devens.  The court based this conclusion on the fact that CERCLA permitted cost recovery actions only against “the owner and operator of a vessel or facility,” (emphasis added) but not the owner of only a portion of a facility.  At least one court has interpreted CERCLA to the contrary, see United States v. Wash. State DOT, Case No. 08-5722RJB, 2010 U.S. Dist. LEXIS 68100, at *14 (W.D. Wash. July 7, 2010), but it is worth monitoring whether other litigants or courts follow this reasoning. 

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