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Classification of CERCLA Response Actions as Removal or Remedial


November 1993








Editors' Summary: CERCLA divides response actions into two categories: removal actions and remedial actions. The need for clarity in the classification of CERCLA response actions as removal or remedial actions is crucial for private parties attempting to recover their response costs. These parties must prove that the costs of their response actions are necessary and consistent with the national contingency plan (NCP), however, the NCP requirements differ for the two types of actions. Thus, before determining the consistency of a response action's costs with the NCP, a court must first categorize the response as either a removal or remedial action under CERCLA. Because response costs are recoverable only to the extent they are consistent with the NCP, and because the NCP's requirements for remedial actions are profoundly more burdensome than the NCP's removal action requirements, the classification of the response action may very well determine the success of a cost recovery action.

Congress has provided parties and courts little guidance on how to classify a CERCLA response action. In this apparent void, an array of court-created response-action classification tests has been developed. The authors review these tests, which rely to varying degrees on factors related to the nature and purpose of the response action. The authors suggest that Congress should alleviate the uncertainty that the diversity of tests has created by eliminating, to the extent possible, the distinctions between removal and remedial actions, and, further, by clarifying how the two types of actions can be identified. The authors' review reveals that the court-created distinctions are mostly superfluous. They conclude that in the absence of congressional action, courts should adopt a uniform test that focuses on the level of need for urgent action. Under his approach, a greater need would require classifying the response action at issue as a removal.