Exxon Mobil Corp. v. United States (335 F. Supp. 3d 889, 2018)

Lee H. Rosenthal, Chief United States District Judge

The Second World War and the Korean Conflict ended over 65 years ago and took place thousands of miles away, but some effects of those wars are present and nearby. These consolidated cases address responsibility for the costs of cleaning up environmental damage from the production of materials the military needed during World War II and the Korean Conflict. These cases involve two of the country's largest and longest-running oil refineries and the chemical plants, or "Plancors," on and adjacent to them, one in Baytown, Texas, the other in Baton Rouge, Louisiana.

During World War II, the United States entered into contracts with Humble Oil and Standard Oil to produce high-octane aviation gas and other products needed for combat. Exxon Mobil Corporation is the successor entity for both Humble Oil and Standard Oil. Under the contracts, the United States encouraged Exxon to produce as much as possible to meet the military needs. Exxon, like other oil companies that entered into similar contracts, retained ownership and day-to-day operational control over the work, including waste management. The Baytown and Baton Rouge refineries and plants disposed of hazardous waste in nearby bodies of water, including the Houston Ship Channel and the Mississippi River. Both feed into the Gulf of Mexico. Exxon has spent, and will continue to spend, millions in cleanup costs. Exxon sued under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. § 9601, et seq. ("CERCLA"), seeking reimbursement for the percentage of those costs attributable to the United States's wartime activities.

There are three phases to these cases, which are in turn related to ongoing litigation in the Court of Federal Claims. In 2015, this court ruled on the liability issues, finding that both Exxon and the United States were responsible for the cleanup costs. Exxon Mobil Corp. v. United States , 108 F.Supp.3d 486 (S.D. Tex. 2015) (" Exxon I "). The next question is how much each is responsible for. This opinion addresses the cross-motions for partial summary judgment on the Phase II equitable-allocation issues-the method to determine what percentage of the cleanup costs each party must bear. Part III is a bench trial to resolve the factual disputes and conflicting inferences necessary to fix the relative shares and the amount of past costs and the share of future costs that each party must pay.

The United States and Exxon each filed lengthy briefs, a large record, and supplemental briefing on additional issues. The court heard oral extensive argument on the cross-motions. Based on the pleadings; the motions, responses, replies, and supplemental briefing; the record; the arguments of counsel; and the applicable law, the cross-motions for partial summary judgment, (Docket Entries No. 200, 202), are granted in part and denied in part.

The issues on which summary judgment is denied will be addressed at the bench trial set to begin on February 19, 2019 . Those issues are:

• the allocation of responsibility for cleanup costs at the units on which the parties did not move for summary judgment;

• the allocation of responsibility for the costs at the Facilities Operations Areas;

• the amount by which to offset Exxon's equitable share of liability based on the North American Coverage Case settlement proceeds;

• the challenges to Exxon's claimed costs that are not supported by both an invoice and proof of payment;

• whether Exxon may recover prejudgment interest, "run rate" costs, and consultant costs;

• the percentages of wartime production related to "commercial" products;

• the adjustments for Exxon's post-wartime waste-management improvements;

• the application of the equitable-allocation methodology set out in this opinion to determine what amount each party must pay; and

• the remaining issues that the pretrial work may identify. The reasons for these rulings are explained below.

I. Background

The court's June 4, 2015 Memorandum and Opinion set out the relevant background in detail. Only a summary is provided here.

A. Procedural Background

Exxon seeks reimbursement for the costs it paid and will pay for environmental cleanup work required under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA") at an oil refinery and chemical plants, one in Baytown, Texas and one Baton Rouge, Louisiana. The United States did not operate either refinery; Exxon and the United States operated the chemical plants. The refinery and chemical plants at each site are a single CERCLA "facility." Exxon I , 108 F.Supp.3d at 519.

Part of the environmental contamination at the facilities was caused by production of high-octane aviation gas and other war products needed during World War II and the Korean Conflict. Between 1941 and 1955, the United States was extensively involved at both facilities. During this period, the refineries and the plants that supplied them raw materials operated at maximum production capacity to help the war efforts. The swift and large increase in production capabilities also increased hazardous wastes. The remediation work undertaken years later is regulated by CERCLA, which was, of course, passed decades after World War II and the Korean Conflict ended.

Exxon alleges that through December 2014, it has incurred approximately $77 million in past response costs attributable to the wartime-related contamination, and that it will incur significant additional future response costs. Exxon's claims for the cleanup costs at the Baytown facility are governed by § 113(f), 42 U.S.C. § 9613(f), and the claims for the costs at the Baton Rouge facility are governed by § 107(a), 42 U.S.C. § 9707(a).

In 2009, Exxon filed two contract actions against the United States in the United States Court of Federal Claims, seeking recovery for avgas-related environmental cleanup costs based on a reimbursement clause in the World War II avgas supply contracts between Exxon and the United States. The clauses required the United States to reimburse Exxon for costs incurred "by reason of" the avgas production. Exxon Mobil Corp. v. United States , 124 Fed.Cl. 478 (2015). The contract case in the Court of Federal Claims is stayed, pending resolution of the issues here.

In these consolidated cases, the parties conducted extensive discovery on the liability and allocation issues. In 2015, the court ruled on the parties' cross-motions for partial summary judgment on whether both, or only one, party was liable for the costs. See Exxon I , 108 F.Supp.3d 486. The court held:

• the statute of limitations applicable to Exxon's claims is § 113(g)(2), 42 U.S.C. § 9613(g)(2), id. at 507-08 ;

• section 113(f)(3)(B)'s contribution provision is Exxon's exclusive remedy to seek cleanup costs incurred in response to administrative settlements with the State of Texas, id. ;

• Exxon's agreed orders with the State of Texas are "administrative settlements" under § 113(f), id. at 510-11 ;

• the refinery and chemical plant at each site are a single "facility" under CERCLA, id. at 519;

• Exxon and the United States were CERCLA owners and operators of the chemical plants at both facilities, id. at 532 ;

• the United States was not a CERCLA owner and operator of either refinery, id. ; and

• Exxon was entitled to a declaratory judgment that "the United States is liable for its equitable share of past and future cleanup costs incurred at the Baytown and Baton Rouge sites," id. at 537.

These determinations meant that both Exxon and the United States bear some share of the liability for the cleanup costs at the Baytown and Baton Rouge facilities. This stage of the litigation, Phase II, addresses the equitable allocation of those costs-the method and factors used to determine how much each party's share should be.

Exxon moved for partial summary judgment on four issues and the United States moved for partial summary judgment on five issues. The issues, which overlap, are:

• whether Exxon's cleanup costs at two of the Baytown units were "necessary costs of response" eligible for CERCLA recovery;

• whether Exxon's response actions at five Baytown units and three Baton Rouge units were "remedial" actions, which would be barred by the statute of limitations in 42 U.S.C. § 9613(g), or "removal" actions, which would not be barred;

• whether Exxon "substantially complied" with the National Contingency Plan for three of the Baytown units and two of the Baton Rouge units;

• whether to deduct the insurance-settlement proceeds Exxon received in a different case;

• whether Exxon accurately accounted for its costs with sufficient documentation;

• whether the United States should receive a zero or de minimis share at three Baytown units and two Baton Rouge units;

• what equitable-allocation methodology the court should use-the "time-on-the-risk" analysis the United States proposes, or the "production-based" analysis that Exxon proposes; and

• whether to enter a declaratory judgment establishing an equitable-allocation formula for Exxon's future costs to investigate and remediate water bodies and sediments near the Baytown and Baton Rouge facilities.

Each issue is addressed in detail below, against the facts shown in the summary judgment record and the legal standards that apply.

B. Factual Background

1. The Baytown Facility Cleanup Units

At the Baytown facility, nine cleanup units are at issue: Separator 3M, Separator 10, the Upper and Lower Outfall Canals, the Velasco Street Ditch, the South Landfarm, two Facilities Operations Areas ("FOA"), and the Tank Farm 3000 groundwater plume area. (Gov't MSJ, Ex. 27; Appendix A).

Separator 3M was an earthen, unlined impoundment that stored refinery wastes. The wastes stored and disposed of at Separator 3M included sludge generated by Separator 10, which operated from the wartime period through 1982, and sludge generated by Separator 12, which replaced Separator 10, between 1982 and 1984. (Gov't Facts ¶ 4; Exxon Response to Gov't Facts ¶ 4). The amount of sludge Separator 10 generated was reduced starting in 1951, as part of Exxon's postwar Effluent Improvement Program. This program included constructing "Effluent Filtration Units" to treat the sludge and to recycle the oil in that sludge. When Separator 3M was operational, Exxon removed sludge from it "about every two years," taking the sludge either to the South Landfarm or to a licensed "Class I off-site disposal facility." (Id. ). Exxon closed part of Separator 3M in January 1985 to construct a new "wastewater treatment aeration basin." (Gov't Facts ¶ 6). The northern half of Separator 3M was "clean closed" in 1984, and the southern half was "clean closed" in 1986. (Id. ¶ 7). "Clean closure" signifies "that all hazardous wastes have been removed from a given RCRA regulated unit and any releases at or from the unit have been remediated so that further regulatory control under RCRA Subtitle C is not necessary to protect human health and the environment." EPA MEMORANDUM RE: RISK-BASED CLEAN CLOSURE (Mar. 16, 1998). The State of Texas required the closures, certifying the closure of the northern half in 1998 and the closure of the southern half in 2006.

Separator 10 was a concrete-walled, clay-bottomed oil-water separator. After Separator 10 was "modernized" in 1950, approximately 300 barrels of oil a day were skimmed from the surface, and five tons of sediment a day were dredged from the bottom. (Gov't Facts ¶ 10). From 1929 to 1950, the sludge from Separator 10 was sent to Separator 3M. After Separator 10 stopped operating, Exxon sent this hazardous waste to the South Landfarm.

Closing Separator 3M and Separator 10 generally consisted of excavating contaminated materials in each separator and the soil beneath it. (Gov't Facts ¶¶ 12-13). The parties point to conflicting evidence showing the reasons for closing these separators. The United States contends that Exxon closed the separators to avoid upgrading them to comply with the then newly enacted EPA regulations. Exxon disputes that characterization, arguing that the separators were closed to address the threat that hazardous substances would be released into the underlying groundwater.

The Upper and Lower Outfall Canals are two unlined earthen ditches that carried wastewater from the Baytown refinery to the Houston Ship Channel. In the 1940s and 1950s, the Upper and Lower Outfall Canals carried over 90 percent of the wastewater generated at the Baytown facility. In September 1991, Exxon submitted a RCRA permit application seeking a "delay of closure" for both Canals to allow them to continue to receive non-hazardous wastewater and stormwater from the Baytown refinery. Between March and June 1994, 23,822 tons of sludge were excavated from the Upper Outfall Canal. (Gov't Facts ¶¶ 17-18). The parties dispute the toxicity levels of the sludge and the dates when it was removed from the Lower Outfall Canal.

The Velasco Street Ditch was an earthen ditch that carried stormwater and wastewater along the northern part of the Baytown refinery. Exxon took several interim cleanup steps in the early to mid-1990s, some required by the State of Texas. (Exxon Response to Gov't Facts ¶ 23). In 1991, Exxon excavated 20,000 tons of sludge from the Velasco Street Ditch to comply with federal EPA requirements. (Gov't Facts ¶ 25). In 1993, Exxon asked the State of Texas to agree to a "delay of closure" approach so that it could continue using the Velasco Street Ditch to receive non-hazardous wastewater and stormwater. In 2008, Exxon "clean closed" the Velasco Street Ditch rather than upgrade it to meet RCRA's standards for hazardous waste-management units. (Gov't Facts ¶ 23). No groundwater monitoring was required or has been conducted since November 2008.

The South Landfarm was an unlined landfill in the southern part of the Baytown refinery. Exxon used this landfill to dispose of refinery wastes. Exxon excavated sludge and soil from the closure of Separators 3M and 10 and stored them at the South Landfarm. (Gov't Facts ¶ 29). In 1985, Exxon submitted a closure plan for the South Landfarm to the State of Texas. A revised closure plan was submitted in 1988. Exxon closed the South Landfarm under RCRA's interim status regulations, with the State of Texas overseeing the closure.

From 1988 to 1990, the South Landfarm had a "rest period" to allow the waste materials to degrade and dry out. The closure process included a historical assessment and evaluation of alternative options; constructing a levee around the unit to prevent flooding that risked carrying contaminated materials to adjacent areas; biodegradation of some of the waste; installing a clay cap on the unit; covering the cap with top soil and grass; installing a "final cover"; submitting a closure report to the State of Texas; and, after Texas accepted Exxon's certification, conducting ongoing groundwater monitoring. (Exxon Response to Gov't Facts ¶ 33). In 1991, Texas certified the closure of the South Landfarm.

For several of the Baytown units-Separator 3M, Separator 10, the Upper and Lower Outfall Canals, the Velasco Street Ditch, and the South Landfarm-the United States cites the testimony of Alborz Wozniak, the United States's cleanup expert, that "there is no evidence" that Exxon closed the units because they posed an imminent risk to human health or the environment. Exxon vigorously disputes this characterization of the evidence of risk. Exxon cites the conflicting testimony of Stephen Johnson, its cleanup and National Contingency Plan expert. Johnson testified that Exxon had determined that these units contained elevated levels of hazardous wastes and substances and that the State of Texas had determined that the public and the environment were at risk from exposure to those substances. (See, e.g. , Gov't Facts ¶ 31; Exxon Response to Gov't Facts ¶ 31).

The Tank Farm 3000 area is in the same location as the former Baytown Ordnance Works and other Ordnance Works structures. In the early 1990s, Exxon discovered two groundwater plumes in the Tank Farm 3000 area. The State of Texas directed Exxon to "locate any ongoing source of hydrocarbon release in the area of Tank Farm 3000 and to abate the release," and Exxon investigated the nature, extent, and source of those plumes. (Exxon Response to Gov't Facts ¶ 161). The parties dispute the source of the groundwater contamination at the Tank Farm 3000 area.

In March 1995, Exxon and the State of Texas entered into an agreed order. The order required Exxon to conduct a RCRA Facility Investigation for 22 solid-waste-management units. To do so, Exxon applied for two Facilities Operations Areas ("FOAs") at the Baytown site. An FOA is an area that addresses "multiple sources of [Contaminants of Concern] within an operational chemical or petroleum manufacturing plant which is required to perform corrective action on property regulated under [the Texas statute relating to municipal hazardous waste] pursuant to a hazardous waste permit or commission corrective action order." 30 TEX. ADMIN. CODE . § 350.131.

Exxon began the five-step process of applying for an FOA for the Baytown refinery in September 2003. The process included assessments, monitoring, corrective-action programs, a formal application, and extensive correspondence and meetings with the State of Texas. In September 2016, the State approved the FOA application by amending Exxon's RCRA permit to establish the "Baytown Refinery FOA." As a result, Exxon asked the State to terminate the March 1995 agreed order, which it did. The cleanup requirements in that order were incorporated into the FOA provisions. Exxon also began the five-step FOA application process for the Baytown chemical plant in September 2003. The application process for the chemical plant FOA is incomplete and has not yet been approved.

Exxon spent approximately $8 million on the Baytown refinery and chemical plant FOA applications. Exxon has incurred, and will continue to incur, costs in connection with those applications. The FOAs cover both wartime-related and non-wartime-related solid-waste-management units, more units than those Exxon claims have a federal nexus in this litigation.

The parties dispute Exxon's reasons for applying for the FOAs and dispute the extent of the cleanup operations at the FOAs. The Baytown refinery FOA process, when completed, will provide a final, site-wide cleanup remedy for the refinery. (Exxon Facts ¶ 699). Exxon points to expert testimony that the Baytown chemical plant FOA, which is awaiting approval from the State of Texas, will provide a similar final, site-wide cleanup remedy for the plant. (Id. ¶ 700).

2. The Baton Rouge Cleanup Units

Three cleanup units are at issue at the Baton Rouge facility: the Shallow Fill Zone, the Old Silt Pond, and the Rice Paddy Landfarm. Each of the units involved extensive oversight by the State of Louisiana. There is no site-wide, permanent cleanup remedy in place at the Baton Rouge facility.

The Shallow Fill Zone is a large area on the western boundary of the Baton Rouge refinery where wastes were deposited. Exxon began monitoring groundwater contamination at the Shallow Fill Zone in 1980 under its RCRA permit. In 1986, the State of Louisiana expressed concern that there were actual or potential releases of hazardous substances in the Shallow Fill Zone and required Exxon to do a subsurface investigation to determine if those concerns were warranted. Exxon met with Louisiana Department of Environmental Quality officials and investigated whether the waste in the Shallow Fill Zone was "leaching from the solidified material" and discharging into the Mississippi River. (Exxon Response to Gov't Facts ¶ 46).

Exxon's hydrogeologic investigation showed contaminated groundwater and high concentrations of hazardous substances. After Exxon submitted its report in February 1987, Louisiana ordered Exxon to investigate, to monitor the groundwater, to remove free-phase hydrocarbons from the Shallow Fill Zone, and to submit a corrective-action plan to remove or treat the groundwater contamination. In 1987, Exxon installed groundwater recovery wells on the western boundary of the Shallow Fill Zone along the Mississippi River, to recover "light non-aqueous phase liquid hydrocarbons." (Gov't Facts ¶ 48). Between 1987 and 2015, Exxon removed approximately 26,000 gallons of those liquid hydrocarbons. In 2008, Louisiana "closed out" the two 1987 orders, but it required Exxon to continue to monitor and remove hydrocarbons from the groundwater under a corrective-action and monitoring plan, under the State's supervision and oversight.

The Old Silt Pond was a hazardous waste-disposal unit containing solid and liquid wastes. This earthen impoundment in the Shallow Fill Zone became operational in 1945 and continued operating until it reached capacity in the late 1950s. In the 1970s, 5 of the 20 acres of the Shallow Fill Zone began operations that continued until the late 1980s. In June 1988, Exxon submitted a closure plan to the State of Louisiana that required interim response activities. The Old Silt Pond was closed under RCRA interim status regulations. When Exxon began to implement the closure plan it had submitted, it encountered difficulties that led to a modified plan proposing "ex-situ solidification" of the sludge and materials and "re-deposition of the solidified materials" into the Old Silt Pond, followed by a RCRA cap. (Exxon Response to Gov't Facts ¶ 54). A "RCRA cap" is a "layer of clay, or other impermeable material installed over the top of a closed landfill to prevent entry of rainwater and minimize leachate." ( RCRA GLOSSARY OF TERMS ). Louisiana approved the modified plan. After Exxon installed the cap, it submitted a closure report, which Louisiana approved, with the requirement that Exxon conduct post-closure groundwater monitoring.

The Rice Paddy Landfarm was an earthen land-treatment unit for silt contaminated with wastewater and sludge. In 1988, Exxon submitted a closure plan to the State of Louisiana. The plan considered two alternatives-natural biodegradation or closure as a landfill. The first, biodegradation, did not reduce the oil content below one percent by 1990, and Exxon installed a RCRA cap. Louisiana required Exxon to conduct post-closure groundwater monitoring. In 1994, Louisiana issued a closure certification for the Rice Paddy Landfarm.

As this summary shows, many-but not all-of the facts are undisputed. The disputes focus on some factual aspects, what legal standards apply, and whether applying them gives rise to competing inferences and approaches that preclude summary judgment.

II. The Legal Standards

A. Summary Judgment

"Summary judgment is required when 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " Trent v. Wade , 776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a) ). "A genuine dispute of material fact exists when the 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Nola Spice Designs, LLC v. Haydel Enters., Inc. , 783 F.3d 527, 536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The moving party 'bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.' " Id. (quoting EEOC v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) ); see also Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by showing an absence of evidence to support the nonmoving party's case. Fret v. Melton Truck Lines, Inc. , 706 Fed.Appx. 824, 827-28 (5th Cir. 2017) (quoting Lindsey v. Sears Roebuck & Co. , 16 F.3d 616, 618 (5th Cir. 1994) ). While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant's case. Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A. , 759 F.3d 498, 505 (5th Cir. 2014) (citing Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005) ). A fact is material if "its resolution could affect the outcome of the actions." Aly v. City of Lake Jackson , 605 F. App'x 260, 262 (5th Cir. 2015) (citing Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc. , 482 F.3d 408, 411 (5th Cir. 2007) ). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." Pioneer Expl., LLC v. Steadfast Ins. Co. , 767 F.3d 503 (5th Cir. 2014).

"When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings." Bailey v. E. Baton Rouge Par. Prison , 663 F. App'x 328, 331 (5th Cir. 2016) (quoting Duffie v. United States , 600 F.3d 362, 371 (5th Cir. 2010) ). The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim. Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014). "This burden will not be satisfied by 'some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.' " Jurach v. Safety Vision, LLC , 642 F. App'x 313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 540 (5th Cir. 2005) ). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Darden v. City of Fort Worth , 866 F.3d 698, 702 (5th Cir. 2017).

B. CERCLA

Congress enacted CERCLA in 1980 "in response to the serious environmental and health risks posed by industrial pollution." Burlington N. & Santa Fe Ry. Co. v. United States , 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) ; see also CTS Corp. v. Waldburger , 573 U.S. 1, 134 S.Ct. 2175, 2180, 189 L.Ed.2d 62 (2014) ; United States v. Bestfoods , 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). "The Act was designed to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination." Burlington N. , 556 U.S. at 602, 129 S.Ct. 1870 (quotations omitted). As amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. No. 99-499, 100 Stat. 1613, CERCLA provides several alternative means for cleaning up contaminated property. Sections 104 and 106 provide for federal abatement and enforcement actions to compel cleanup of contaminated sites. 42 U.S.C. §§ 9604, 9606(a). Section 107(a)(4) states that "covered persons"-also known as "potentially responsible parties" or "PRPs"-may be liable for costs the federal or state government incur in responding to the contamination and for response costs incurred by "any other person." 42 U.S.C. § 9607(a)(4)(A)-(B). Section 107(a)(4) is part of the original statute enacted in 1980. Two contribution provisions, §§ 113(f)(1) and 113(f)(3)(B), were added as part of SARA.

Section 107(a) identifies four categories of PRPs who may be liable for costs to clean up hazardous substances. 42 U.S.C. § 9607(a). The categories are: (1) owners and operators of facilities at which hazardous substances are located; (2) past owners and operators of these facilities when the disposal of hazardous substances occurred; (3) persons who arranged to dispose of or treat hazardous substances; and (4) transporters of certain hazardous substances. 42 U.S.C. § 9607(a)(1)-(4). Unless a statutory defense or exclusion applies, covered persons are liable for "all costs of removal or remedial action incurred by the United States government or a State ... not inconsistent with the national contingency plan," and "any other necessary costs of response incurred by any other person consistent with the national contingency plan," 42 U.S.C. § 9607(a). The statute defines "person," "facility," "disposal," "release," and "environment." CERCLA also provides a narrow set of defenses to liability that may arise under § 107(a), none of which applies here.

Section 113, added in 1986 as part of SARA, contains a subsection entitled "Contribution." This subsection states:

Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ], during or following any civil action under [§§ 106 or 107(a) ].... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§§ 106 or 107].

42 U.S.C. § 9613(f)(1).

Under § 113, a PRP that "has resolved its liability to the United States or a State in an administrative or judicially approved settlement" is immune from contribution claims made by other PRPs "regarding matters addressed in the settlement." Id. § 9613(f)(2). A settling PRP may seek contribution under § 113(f)(3) from other, nonsettling PRPs. Id. § 9613(f)(3)(B). Section 107(a) allows a plaintiff to recover 100 percent of its response costs from all liable parties, including those who have settled their CERCLA liability with the government. Id. §§ 9613(g)(2), 9607(a). Section 113's right to contribution is more restricted than the § 107 contribution right. Section 107 has a six-year statute of limitations; § 113 has a three-year statute of limitations in certain scenarios. Under § 107, plaintiffs may recover only costs in excess of their equitable share but may not recover from previously settling parties. Id. § 9613(f)(1), (f)(2), (g)(3). Federal and state governments may sue PRPs for response costs and may themselves be liable as PRPs for response costs others incur. See 42 U.S.C. § 9607(a)(4)(A), (B).

This statutory framework provides the basis for analyzing the issues presented in the cross-motions for partial summary judgment.

III. Whether the Facilities Operations Area Costs Were Necessary Costs of Response

CERCLA authorizes recovery for "necessary costs of response incurred ... consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B). The United States challenges whether Exxon's costs for the two FOA applications at the Baytown facility were necessary.

Between 2003 and 2014, Exxon spent over $8 million on the FOA applications for the Baytown refinery and chemical plant. (Gov't Facts ¶ 43). An FOA applicant "can propose to modify" otherwise-applicable state regulations, "to the extent necessary to establish an interim response action that will be protective of human health and the environment within ... the FOA." Id. § 350.132(a). An FOA may "remain in effect for the duration of active industrial operations," but when the FOA ends, the plant "shall fully comply" with the State's regulations. Id. § 350.133(a), (c). An FOA allows a company to defer cleanup actions. (Gov't Facts ¶ 37 ("According to Exxon's consultants, the advantage of using a FOA is to 'defer final remedy to end of operations' ") ).

The State of Texas approved the application for the Baytown refinery FOA in 2016. The Baytown chemical plant FOA application is still pending. (Exxon Facts ¶¶ 699, 700). The refinery FOA allows Exxon to postpone cleaning up certain contamination. The United States cites a 2003 Exxon report stating that the facility investigation activities had been deferred indefinitely "pending Exxon's submission of the FOA application." (Gov't Facts ¶ 42). Exxon spent $8,056,656 on the FOA applications, but it did not break down that amount to identify which costs were incurred in connection with which FOA application. (Id. ¶ 43). The United States points to expert testimony, and Exxon does not dispute, that the FOAs include "more cleanup units than those Exxon claims have a federal nexus" to this litigation. (Id. ¶ 44).

The United States argues that Exxon's FOA costs are not costs "to conduct a cleanup," but rather "to postpone one." (Gov't MSJ at 9). The United States points to the testimony of Peter Gagnon, Exxon's consultant who oversaw much of the environmental cleanup work at the Baytown facility, that the final cleanup work that has been delayed under the FOA will be completed "[h]ypothetically, when the refinery no longer operates." (Gov't Facts ¶ 37).

The United States points out that Exxon has admitted that its applications for the two Baytown FOAs were voluntary, in the sense that they were not required by the State of Texas. The United States argues that the "FOA investigations were only 'required' to demonstrate eligibility for the FOA program," (Gov't Reply at 2), and cites cases denying recovery for costs related to preliminary investigations in sites where the plaintiffs did not intend to cleanup the property. See Young v. United States , 394 F.3d 858, 864-65 (10th Cir. 2005) ("Plaintiffs' alleged response costs were not 'necessary' to the containment or cleanup of hazardous releases because the costs were not tied in any manner to the actual cleanup of hazardous releases. Absolutely no nexus exists between the costs Plaintiffs expended and an actual effort to cleanup the environmental contamination. To the contrary, Plaintiffs maintain their property continues to be contaminated. Plaintiffs also repeatedly testified they do not intend to spend any money to cleanup the contamination on their property."); Calmat Co. v. San Gabriel Valley Gun Club , 809 F.Supp.2d 1218, 1221-25 (C.D. Cal. 2011) (dismissing the case as unripe because the plaintiff "ha[d] just done some investigation and testing, primarily for the purposes of [the] litigation").

Finally, the United States argues that, because the $8 million figure cannot be broken down by the unit covered by each application, and because the FOAs cover more cleanup units than Exxon claims in this litigation, there is "no way to determine which costs are attributable to units for which the United States is not liable." (Gov't MSJ at 46).

Exxon responds that the costs for the two Baytown FOAs were necessary response costs. First, Exxon applied for the Baytown FOAs to "conduct State-required future response actions in a much more cost-effective manner," making them "voluntary" in a way that is not disqualifying under CERCLA. (Exxon Response at 44). Second, Exxon cites the testimony of its project manager, Leon Paredes, that "[o]ne of the primary reasons that Exxon enrolled the Baytown Facility in the FOA program was because the company determined that conducting these environmental investigations, monitoring and cleanup activities at this facility under the FOA program would enable the company to conduct these activities in a much more cost-effective manner." (Exxon Response to Gov't Facts ¶ 37). Exxon explains that the FOA process allowed for "a more streamlined and cost-effective permanent remedy" because, with an FOA, many solid-waste-management units can be addressed "holistically" at once, rather than one-by-one. (Exxon Facts ¶ 694). Exxon's environmental consultant conducted a comparative cost analysis and estimated that Exxon would achieve "millions of dollars" in future cleanup cost savings under the FOA program. (Exxon Response to Gov't Facts ¶ 37).

Exxon vigorously disputes the United States's factual assertion that the cleanup activities for the solid-waste-management units at issue have been deferred indefinitely. "During the period of 2004 to 2014 for which Exxon has claimed response costs related to [RCRA Facility Investigation] activities, four wartime [solid-waste-management units] ( [units] 59, 60, 62 and 69) were the subject of a significant portion of the [RCRA Facility Investigation] activities, including, for example, groundwater monitoring well installation; soil, groundwater and other environmental media sampling and analysis work; the preparation and submittal of investigatory reports ...." (Exxon Response to Gov't Facts ¶¶ 42, 43). Under the FOA, "Exxon will continue to conduct periodic groundwater monitoring around the Site" and "over the next few years Exxon also will be required to conduct a cleanup action in Mitchell Bay to address contamination resulting from ... former wartime waste units." (See Exxon Facts ¶ 697; Exxon Response to Gov't Facts ¶ 43).

In short, the United States argues that the FOA costs are not necessary response costs because Exxon was not acting under state compulsion and because Exxon used the FOAs to delay, rather than to implement, cleaning up the hazardous wastes. Exxon argues that the FOAs were to respond to the State-required response actions in a more cost-effective and efficient way to implement that cleanup. Because Exxon was not avoiding required cleanup work, but trying to do it better, the FOA costs were "necessary" as an effective way to conduct state-required cleanup of the contamination.

Exxon's argument is supported by the record and the legal standards. Exxon has submitted and pointed to undisputed record evidence showing that it used the FOAs to accomplish the State-required cleanup work, less expensively and more efficiently than would otherwise be the case. See United States v. W.R. Grace & Co. , 429 F.3d 1224, 1233 n.14 (9th Cir. 2005) ("We have previously rejected an 'ulterior motive' analysis in a challenge to whether CERCLA response costs incurred by a private landowner were necessary. 'The issue is not why the landowner decided to undertake the cleanup, but whether it was necessary. To hold otherwise would result in a disincentive for cleanup.' " (quoting Carson Harbor Vill., Ltd. v. Unocal Corp. , 270 F.3d 863, 871-72 (9th Cir. 2001) (en banc) ) ).

Exxon did a thorough comparative cost analysis that showed that implementing refinery and plant FOAs would result in "millions of dollars" in future cleanup cost savings. (Exxon Facts ¶ 697; Exxon Response to Gov't Facts ¶ 37). The structure of the FOA program allows cleanup operators to prioritize the riskier areas to work on first, and to implement a schedule and plan that reduce overall cleanup costs and increase efficiency. The record shows that the FOAs would allow Exxon to work on a number of solid-waste-management units in a comprehensive way, rather than piecemeal, producing a better, more effective, and less costly result. (Exxon Facts ¶¶ 693, 694; Exxon Response to Gov't Facts ¶ 37).

Undisputed record evidence showing Exxon's work preceding and implementing the FOAs shows that, as a matter of law, the FOA costs were necessary response costs under CERCLA. The court grants Exxon's motion for partial summary judgment on this issue to this extent, and denies the United States's cross-motion. But there are genuine factual disputes material to determining the specific amounts of cleanup costs attributable to wartime-related production at the covered solid-waste-management units, as opposed to other units and other, non-wartime, work. There are also genuine factual disputes material to determining what percentage of the covered FOA costs is attributable to the United States. As the United States correctly points out, because Exxon has not broken down its costs between the different units, or even between the two FOA applications, the court is not presently able to determine the relative percentages or dollar amounts that the United States and Exxon must pay. These issues will be addressed based on an expanded record at the bench trial.

IV. Whether Exxon's Actions Were "Removal" or "Remedial"

Under CERCLA, the statute of limitations is determined by whether Exxon's responses were a "removal" action, for which the limitations period is "3 years after completion of the removal action," or "remedial" actions, for which the limitations period is "6 years after initiation of physical on-site construction of the remedial action." 42 U.S.C. § 9613(g)(2)(A)-(B). Exxon argues that its response actions at both facilities are a single removal action, making its claims timely. The United States argues that the cleanup activities were multiple remedial actions, barring Exxon's claims under the 6-year statute of limitations.

A. The Standard for Determining Whether an Action Is Remedial or Removal

Ordinarily, the EPA designates a cleanup activity as a "removal" or "remedial" action before the cleanup process starts. Here, the determination is retrospective, which complicates classifying Exxon's response actions as "removal" or remedial."

CERCLA defines "remedial" response actions as:

those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.

42 U.S.C. § 9601(24).

A "removal" action is defined as:

the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.

Id. § 9601(23).

Whether to classify a cleanup activity as "remedial" or "removal" is a question of law. Geraghty & Miller, Inc. v. Conoco Inc. , 234 F.3d 917, 925 (5th Cir. 2000), abrogated on other grounds by Vine Street LLC v. Borg Warner Corp. , 776 F.3d 312 (5th Cir. 2015). "[T]he CERCLA definitions are expansive enough that certain activities may well be covered by both." Id. "This is a question of law with some complexity." Id. Elements of the definitions can overlap, and semantics can obscure the nature of the cleanup work performed. Id. (citing Pub. Serv. Co. v. Gates Rubber Co. , 175 F.3d 1177, 1182 (10th Cir. 1999) ). At least one court has held that "[t]hese overlapping definitions are to be construed liberally in favor of recovery...." Cal. Dep't of Toxic Subst. Control v. J & S Chrome Plating Co. , 2015 WL 12645742, at *3 (C.D. Cal. July 30, 2015) (collecting authority).

The inquiry is "highly fact specific," but courts have established some guiding principles. Geraghty & Miller , 234 F.3d at 925. "[R]emoval actions generally are immediate or interim responses, and remedial actions generally are permanent responses." Id. "Congress intended that the term 'removal action' be given a broad interpretation." Id. (citing Kelley v. E.I. DuPont de Nemours & Co. , 17 F.3d 836, 843 (6th Cir. 1994) ).

The parties cite conflicting standards from the case law, EPA regulations and guidance, and examples from CERCLA and the National Contingency Plan in support of their competing characterizations of Exxon's response activities as removal or remedial actions. The parties agree that no single element is dispositive. Both rely on a February 2000 EPA Memorandum written to guide project managers in the process of choosing between remedial and removal actions. (Exxon MSJ, Ex. 15; Gov't MSJ, Ex. 112; MEMORANDUM RE: USE OF NON-TIME-CRITICAL REMOVAL AUTHORITY IN SUPERFUND RESPONSE ACTIONS (Feb. 14, 2000) ["Removal Memorandum"] ). The parties also rely on 40 C.F.R. § 300.415(b)(2), which sets out eight factors the EPA uses to decide whether a removal action is appropriate. Although the court considers all of these factors, those most relevant to this case are: "[a]ctual or potential exposure to nearby human populations, animals, or the food chain from hazardous substances or pollutants or contaminants"; "[a]ctual or potential contamination of drinking water supplies or sensitive ecosystems"; "[h]igh levels of hazardous substances or pollutants or contaminants in soils largely at or near the surface, that may migrate"; and "[o]ther situations or factors that may pose threats to public health or welfare of the United States or the environment." 40 C.F.R. § 300.415(b)(2).

1. The United States's Contentions

The United States cites the February 2000 EPA Memorandum explaining that "remedial authority generally would be used to address complex site problems that will likely require a costly, complicated response." (Removal Memorandum at 5). The United States proposes two factors to distinguish between remedial and removal actions: (1) the presence of an "imminent threat" to human health or the environment; and (2) the permanence, or lack thereof, of the response action's effectiveness. See New York v. Next Millenium Realty, LLC , 732 F.3d 117, 125 (2d Cir. 2013). The United States also recommends considering cost as a distinguishing factor. Generally, the more expensive the action, the more likely it is to be a remedial, not a removal, action. See Colorado v. Sunoco, Inc. , 337 F.3d 1233, 1240 (10th Cir. 2003) ; Pub. Serv. Co. , 175 F.3d at 1182.

a. The Presence of an Imminent Threat

The parties dispute using the presence of an "imminent threat" as a factor in identifying a response as a remedial action rather than a removal action. The Fifth Circuit has explained that removal actions are "generally immediate or interim responses." Geraghty & Miller, Inc. , 234 F.3d at 925. The United States relies on cases from other circuits supporting the "imminent threat" factor. See Next Millenium Realty , 732 F.3d at 124-25 ("Removal actions are clean-up or removal measures taken to respond to immediate threats to public health and safety."); Morrison Enterprises, LLC v. Dravo Corp. , 638 F.3d 594, 608 (8th Cir. 2011) ("[W]e have described removal actions as those taken to counter imminent and substantial threats to public health and welfare."); Frey v. EPA , 403 F.3d 828, 835 (7th Cir. 2005) ("Removal refers to a short-term action taken to halt risks posed by hazardous wastes immediately."); Sunoco , 337 F.3d at 1240 ("A removal action ... is geared to address an immediate release or threat of release."). The United States argues that removal actions are limited to measures responding to acute, imminent threats that require immediate, or incomplete, responses.

Exxon primarily relies on EPA guidance to argue that removal actions are not limited to response measures required to respond to an acute, imminent threat or measures that are incomplete because the need for immediate work is so pressing. Exxon cites the EPA's list of factors for determining whether a removal action is appropriate, 40 C.F.R. § 300.415(b)(2), and points out that none of those factors requires an "imminent threat." (Exxon Response at 8).

Exxon also points to the February 2000 EPA Memorandum and an August 1993 EPA Memorandum providing guidance for "non-time critical" removal actions. (Removal Memorandum; 1993 MEMORANDUM RE: TRANSMITTAL OF GUIDANCE ON CONDUCTING NON-TIME-CRITICAL REMOVAL ACTIONS UNDER CERCLA (Aug. 6, 1993) ). The 1993 Memorandum states that the "EPA has categorized removal actions in three ways: emergency, time-critical, and non-time critical, based on the type of situation, the urgency and threat of the release or potential release, and the subsequent time frame in which the action must be initiated." (Id. at 3). The focus here is on the existence of, and the difference between, a "non-time critical" removal response action and a remedial response action.

b. Permanence

The United States proposes using the permanence of a response as a way to distinguish a removal from a remedial action. (Gov't MSJ at 14). The Fifth Circuit has explained that, as a general principle, "removal actions generally are immediate or interim responses, and remedial actions generally are permanent responses." Geraghty & Miller, Inc. , 234 F.3d at 925. Other circuits agree. W.R. Grace & Co. , 429 F.3d at 1228 ("Remedial actions ... are often described as permanent remedies to threats for which an urgent response is not warranted"); Frey , 403 F.3d at 835 ("Remedial actions involve permanent solutions."); Morrison Enters., LLC , 638 F.3d at 608 ("[R]emedial actions are longer term, more permanent responses."); Next Millennium Realty, LLC , 732 F.3d at 125 ("Remedial actions are generally actions designed to permanently remediate hazardous waste.").

Exxon argues that "the dispositive question is whether an action was supposed to provide a comprehensive, site-wide solution to site contamination." (Exxon Response at 7). Exxon argues that a permanent solution can be remedial, but only if that solution is site- or facility-wide. (Id. ). The 2000 EPA Memorandum stating that, although remedial actions are permanent solutions, "removals can also achieve permanent solutions," complicates the issue. (Removal Memorandum at 4 n.3). The United States acknowledges that a removal "may in some cases provide a permanent solution to environmental contamination." (Gov't MSJ at 15 n.11).

The 2000 EPA Memorandum explains that, "at sites where the other factors suggest that remedial authority should be used" to achieve permanent solutions, "it may still be appropriate to use removal authority to conduct interim or partial response actions to achieve immediate risk reduction." (Removal Memorandum at 4 n.3). This qualifier is recognized in Ninth and Tenth Circuit opinions. See W.R. Grace & Co. , 429 F.3d at 1228 ("Remedial actions ... are often described as permanent remedies to threats for which an urgent response is not warranted"); Public Serv. Co. , 175 F.3d at 1182 ("[A] remedial action seeks to effect a permanent remedy to the release of hazardous substances when there is no immediate threat to the public health.").

c. Cost

The final factor the United States proposes to use is cost. The Fifth Circuit did not include this factor in Geraghty & Miller , but some courts have considered it. See, e.g. , Public Serv. Co. , 175 F.3d at 1182 ("Generally, a removal action costs less."). Although CERCLA requires that "fund-financed removal actions ... be terminated after $2 million has been obligated or 12 months have elapsed," 40 C.F.R. § 300.415(b)(5), "[t]hese limits (which can be waived) apply only to fund-financed actions, and serve as a fiscal check; they are not found in the statutory definition of removal and do not control which actions can be taken as removals." (Removal Memorandum at 4 n.4). Exxon agrees that cost may be a factor, but points out that the 2000 EPA Memorandum counsels against using it.

2. Exxon's Contentions

Exxon proposes using four criteria in deciding whether an action is a "non-time-critical" removal action or a remedial action. (Exxon MSJ at 22). Exxon's proposed factors are "time-sensitivity"; the complexity of the problem and the action; the comprehensiveness of the proposed action; and the likely cost of the action. Id. These four factors come from the 2000 EPA Memorandum on the use of non-time-critical removal authority in Superfund response actions. (Removal Memorandum at 3). Exxon compares the actions it took with the definitions of "remedial" and "removal" actions in CERCLA and the examples in the National Contingency Plan. (Exxon MSJ at 21-27).

The United States does not dispute that the CERCLA definitions and the National Contingency Plan examples are relevant to classifying the response actions as remedial or removal.

a. Time Sensitivity

The 2000 EPA Memorandum defines "time sensitivity" as "the need to take relatively prompt action." (Removal Memorandum at 3 n.2). Exxon argues that "time sensitive" must be different from "imminent threat" for there to be any meaningful difference between "time-critical" and "non-time critical" removal actions. (Exxon Response at 9).

CERCLA's statutory language does not distinguish between time-critical and non-time-critical response actions. The 2000 EPA Memorandum explains that the threshold question in deciding whether an action is a non-time-critical removal action or a remedial action "is whether a CERCLA decisionmaker is faced with a threat to human health or the environment that, though not time critical, is nonetheless sufficiently serious that the added time needed to comply with remedial requirements ... would be unacceptable." (Removal Memorandum at 5 n.6).

b. The Complexity of the Problem and Action

Remedial actions are appropriate for more complex, costly, site-wide problems, while removal actions are generally targeted at less complicated, more contained problems that cost less to address. (Removal Memorandum at 3-4). The 2000 EPA Memorandum indicates that complexity is secondary to "time-sensitivity." (Id. at 4). The Memorandum explains that a removal action may be appropriate to address a costly and complex problem that is also time-sensitive.

c. The Comprehensiveness of the Solution

Exxon urges the use of the "comprehensiveness" of the proposed solution as a factor. (Exxon MSJ at 23). The EPA considers "permanence per se" to be "misleading" because permanent solutions may result from removal actions as well as remedial actions. (Removal Memorandum at 3-4 n.3). The 2000 EPA Memorandum distinguishes between permanent response actions that achieve "immediate risk reduction," from other permanent response actions designed for less acute risks. (Id. ). If the purpose is to achieve immediate reduction of an acute risk, the action is more appropriately classified as a removal action. (Id. ). If an action is "comprehensive" or "site-wide," it is appropriately classified as a remedial action.

3. The Court's Conclusion

CERCLA defines a removal action as "the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release." 42 U.S.C. § 9601(23). CERCLA defines a remedial action as "those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment." 42 U.S.C. § 9601(24).

The court also considers the factors set out in 40 C.F.R. § 300.415(b)(2). The following factors have particular relevance to this record: "[a]ctual or potential exposure to nearby human populations, animals, or the food chain from hazardous substances or pollutants or contaminants"; "[a]ctual or potential contamination of drinking water supplies or sensitive ecosystems"; "[h]igh levels of hazardous substances or pollutants or contaminants in soils largely at or near the surface, that may migrate"; and "[o]ther situations or factors that may pose threats to public health or welfare of the United States or the environment." 40 C.F.R. § 300.415(b)(2).

The court also considers the National Contingency Plan examples of actions that "as a general rule" are removal actions. Those examples include: "[c]apping of contaminated soils or sludges-where needed to reduce migration of hazardous substances or pollutants or contaminants into soil, ground or surface water, or air"; "[e]xcavation, consolidation, or removal of highly contaminated soils from drainage or other areas-where such actions will reduce the spread of, or direct contact with, the contamination"; and "[c]ontainment, treatment, disposal, or incineration of hazardous materials-where needed to reduce the likelihood of human, animal, or food chain exposure." 40 C.F.R. § 300.415(e).

In addition to the CERCLA definitions and the National Contingency Plan examples, the court considers the "permanence" of a response action, but with the qualifier that the more "comprehensive" a cleanup action, the more likely it is to be considered a remedial action. This qualifier is supported by the 2000 EPA Memorandum and the case law:

[T]he Removal Memo describes courts' reliance on the "permanence" of the response as "sometimes misleading": "As a practical matter, removal actions are often permanent solutions such as can be the case in a typical soil or drum removal." ...cf. Geraghty & Miller , 234 F.3d at 927 ("Even if the replacements for these wells are integral to the long-term remediation of the site, that does not mean that their initial placement cannot be categorized as removal."). This observation seems logical, as we do not want to tie the EPA's hands or compel it to adopt short-term remedies for fear that any more permanent solutions automatically will be dubbed "remedial actions." Nor would it make economic or practical sense to impose a requirement that removal actions must be only temporary in nature. The Removal Memo instead uses the term "comprehensiveness" to distinguish between the use of removal authority to conduct interim or partial response actions that are focused on immediate risk reduction as compared with final or "comprehensive" response at the site.

...

These informal interpretations combined with the descriptions in the National Contingency Plan provide a persuasive interpretation that removal actions encompass interim, partial time-sensitive responses taken to counter serious threats to public health . As the EPA explained in the Second Amended Memo, "CERCLA was designed and enacted to prevent illness and death resulting from exposure to hazardous substances, not wait for its occurrence to prove a threat."

W.R. Grace & Co. , 429 F.3d at 1244-45 (emphasis added).

The court also considers the "time sensitivity" of the action, not limited to "imminent risk." These conclusions align with the different types of removal actions, including "emergency," "time-critical," and "non-time critical." If the court were to consider "imminent risk" as a factor requiring classification as a removal action, the category of "non-time critical" removal actions would be unnecessary. Instead, the court adopts the factors set out in the 2000 EPA Memorandum, including: time-sensitivity, defined as "the need to take relatively prompt action" ; "the complexity of both the problems to be addressed and the action to be taken"; "the comprehensiveness of the proposed action"; and "the likely cost of the action." (Removal Memorandum at 3). Although the court considers the cost of the response action as a distinguishing factor-the parties and the 2000 EPA Memorandum both recommend it-that factor carries relatively less weight because the United States and the 2000 EPA Memorandum acknowledge that both removal and remedial actions can be costly.

B. The Number of Response Actions

The parties dispute the number of response actions at each facility. Exxon argues that its response activities are a single, continuous removal action at each facility. (Exxon MSJ at 30-32). The United States argues that Exxon's response activities at each facility were different remedial actions. (Gov't MSJ at 11-13). The parties devote much argument to comparing their competing characterizations of the facts here to the facts described in other cases, but the parties agree that the threshold issue, whether there can be multiple response actions at a facility, is one of statutory interpretation. See Sunoco , 337 F.3d at 1241.