some overlap between the definitions" of removal and remedial actions).
25. The CERCLA definitions cited above provide examples of removal and remedial activities. The term remedial might include many of the measures implemented during Projects 50 and 51 or the excavation, "offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials." 42 U.S.C. § 9601(24). The definition of removal contains no such excavation and disposal example. See 42 U.S.C. § 9601(23). Nor does it cite as an example any of the measures taken during Projects 50 and 51. Id.
26. However, CERCLA does not, by its terms, provide an exhaustive list of activities for either type of response. See 42 U.S.C. § 9601 (23)-(24). Excavation and offsite transport of a hazardous waste
may be characterized as a removal action. General Elec., 920 F.2d at 1419; BCW Assocs, at *18 (concluding that "off-site actions are more easily characterized as removal actions"). The 1985 NCP lists the "removal of contaminated soils" as an appropriate removal activity. 40 C.F.R. § 300.65 (1985).
27. To determine whether Hatco's response activities should be construed as removal actions under the NCP, the Court looks for guidance from the following factors: (a) the nature of the action taken; (b) the imminence of the release or threatened release; (c) whether a federal or state agency has found the existence of a threat to public health and safety or to the environment, (d) whether an agency has recommended a course of action to eliminate the threat and (e) the costs, complexity and duration of the activity. See U.S. Steel Supply, at *10.
28. Upon considering the foregoing factors, the Court finds that the PA Response Action constituted a removal action under CERCLA and the 1985 NCP. In making this determination, the Court places significant weight upon the fact that the release of K024 was not only imminent, but actually occurring -- the approximately 5,000 tons of PA still bottoms deposited in the PA Disposal Area were leaching K024 into Sling Tail Creek and into the groundwater, a potential source of drinking water.
29. The Court recognizes that neither EPA nor DEP had identified the K024 threat, much less made any recommendation concerning remediation. In addition, the Court notes that the great cost and tonnage involved in the project belie a removal characterization. However, the Court finds that the enormous quantity of waste materials in fact warranted a removal action, given the hazardous qualities of K024. Moreover, the cost and the tonnage of material should not overshadow the relative simplicity of the task: the 400 by 300 foot area of contamination was visually identifiable and the excavation and disposal was completed in just over a month.
30. The Court also find's that the measures comprising Projects 50 and 51 are properly deemed removal actions under CERCLA and the 1990 NCP. Projects 50 and 51 were implemented during the formulation of a plan to remediate the entire site. With the objective of protecting the environment and reducing exposure to workers at the site, Projects 50 and 51 entailed interim measures designed to stabilize actual releases of PCBs and to prevent future releases.
b. The PA Response Action
(1) Motives and Intent
31. Before analyzing the PA Response Action against the 1985 NCP requirements, the Court is compelled to address two issues preliminarily: (1) Hatco's motives for remediating the PA Disposal Area, and (2) Hatco's failure to consider the NCP during the PA Response Action.
32. Grace suggests that Hatco may not recover the costs of the PA Response Action because the contemplated sale to Exxon motivated Hatco to act. The Court rejects this legal proposition and considers Hatco's motives irrelevant for the purposes of determining response cost recovery. See General Elec., 920 F.2d at 1418 (finding that "the motives of the private party attempting to recoup response costs under 42 U.S.C. § 9607(a)(4)(b) are irrelevant"), cert. denied, U.S. , 111 S. Ct. 1390 (1991); Channel Master, 748 F. Supp. at 379 n.7; BCW Assocs., 1988 U.S. Dist. LEXIS 11275, 1988 WL 102641, at *17. A party may be motivated by any number of objectives when undertaking a response action. The requirements of the NCP sufficiently safeguard against meritless cost recovery proceedings. The Court will not find lack of NCP compliance simply on grounds that the contemplated sale to Exxon hinged upon remediation of the PA Disposal Area.
33. The Court adopts a similar rationale regarding Hatco's failure to acknowledge or address the NCP during the PA Response Action. Hatco's admission of neglect cannot be viewed as dispositive on the issue of NCP compliance. Substantial compliance is the touchstone for cost recovery. Hatco's intent -- like motive -- may be illuminating, but not by itself dispositive, on the question of NCP compliance.
(2) Question of Compliance -- 1985 NCP Removal Provisions
(A) Propriety of a Removal Action -- Assessment
34. "Except as provided in section 300.71, nothing in [the 1985 NCP] limits the rights of any person to seek recovery of response costs from responsible parties pursuant to CERCLA section 107." 40 C.F.R. § 300.61(e)(2) (1985).
35. With an exception not relevant here, the 1985 NCP provides that to recover costs from responsible parties under CERCLA § 107, a private party's "response action will be consistent with the NCP[,]" and if a removal action, it must be "consistent with § 300.65 [of the NCP]." Id. § 371(a)(2)(i).
36. Turning to the provisions of section 300.65, the Court notes that "any action to be taken by the 'lead [or government] agency' in § 300.65 may be taken by the person carrying out the response." Id. § 300.71(a)(3) (emphasis added). The Court not only finds this provision relevant to the standard of substantial compliance, but construes it as according private parties even greater latitude when their response actions are scrutinized under NCP requirements. What is mandatory for a government agency may not be mandatory for a private party depending upon the circumstances.
37. To determine the appropriate response to a release or threat of release, the 1985 NCP requires that "the lead agency shall first review the preliminary assessment and the current site conditions to determine if a removal action is appropriate." Id. at § 300.65(a)(1). To determine the propriety of a removal action, the responding party shall consider the following factors under section 300.65(b)(2) (the "removal action factors"):
(i) Actual or potential exposure to hazardous substances or pollutants or contaminants by nearby populations, animals or food chain;