United States v. R.A. Corbett Transport, Inc. , 785 F. Supp. 81 ( 1990 )

785 F. Supp. 81 (1990)

UNITED STATES of America
v.
R.A. CORBETT TRANSPORT, INC.

No. M-89-165-CA.

United States District Court, E.D. Texas, Marshall Division.

May 11, 1990.

ORDER

HALL, District Judge.

Came on for consideration Defendant's Motion for Summary Judgment and Plaintiff's Response in Opposition. Having examined all materials properly before it, the Court is of the opinion that said Motion for Summary Judgment should be DENIED.

This cause of action is brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(a) for recovery of response costs incurred by the United States due to the release or threatened release of hazardous substances at the Stewco, Inc. Site near Waskom, Harrison County, Texas. Defendant's sole ground for summary judgment is the contention that Plaintiff did not comply with the provision of 42 U.S.C. § 9613(g)(2)(A), which requires an action for recovery of costs to be brought within three years of completion of the removal action.

The United States Environmental Protection Agency conducted three major response activities at the Site. Removal of liquids and sludges from the ponds located at the Site with subsequent backfilling of the ponds with clean soil and capping with a clay cover took place between March 31, 1984 and June 7, 1984. A hazard ranking was performed in June, 1984 on the Site to determine whether it posed a sufficient hazard to be included on the National Priorities List, which ranking indicated the possibility of additional risks. A remedial investigation was then conducted between December, 1987 and May, 1988, through which the Environmental Protection Agency determined that no further response activities were necessary. A Record of Decision was issued by the Environmental Protection Agency on September 16, 1988.

Under 42 U.S.C. § 9607, liability extends to "all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the national contingency plan." The term "removal" is defined under 42 U.S.C. § 9601(23) to include "such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances." The Court finds, therefore, that all Site activities conducted by the United States, including the remedial investigation, were removal actions under the meaning of CERCLA.

The present suit was filed on October 13, 1989, approximately thirteen months following the Record of Decision. Said suit is, therefore, within the three-year limitation set forth in 42 U.S.C. § 9613(g)(2).^[1] It is, therefore,

ORDERED, ADJUDGED, AND DECREED that Defendant R.A. Corbett Transport, Inc.'s Motion for Summary Judgment is hereby DENIED.

NOTES

[1] The statute could not begin to run, in any event, until its effective date of October 17, 1986.