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California ex rel. Cal. Dep't of Toxic Substances Control v. Hyampom Lumber Co.

ELR Citation: 26 ELR 20647
Nos. No. S-94-1579 WBS/PAN, 903 F. Supp. 1389/41 ERC 1956/(E.D. Cal., 09/18/1995)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)(2)(B)'s six-year statute of limitations bars California's action to recover costs it incurred at a contaminated lumber mill in Trinity, California. Under §113(g)(2), the limitations period is triggered if the relevant event (1) was physical, (2) occurred on site, (3) was part of the construction of the remedial action, and (4) constituted initiation of the remedial action. The state's suit is timely only if the state initiated physical on-site construction of the remedial action on or after September 30, 1988, six years before the date on which the state filed its suit. The court holds that California did not commence the suit within six years of initiating physical on-site construction of the remedial action. The court rejects the argument that the installation of fences around the property on October 2, 1987, and July 5, 1988, provides the appropriate date of accrual of the action. The installation of fencing is specifically listed as a removal action in CERCLA §101(23), and it is consistent with the permanent remedy by serving the purpose of securing the site pending the completion of the remedial investigation and feasibility study. The court holds that bringing in utilities on September 15, 1988, necessary to conduct the selected remedial action provides the appropriate date of accrual for the action. Bringing in utilities was not a temporary or preliminary action, but rather constituted "initiation of physical on-site construction of the remedial action." The installation of utilities was a remedial action, because it was critical in implementing a permanent remedy and served the purpose of preventing or minimizing the release of hazardous substances.

Counsel for Plaintiff
Reed Sato, Ass't Attorney General
Attorney General's Office
1515 K St., Ste. 511, Sacramento CA 95814
(916) 445-9555

Counsel for Defendants
Daniel S. Frost
Carr, Kennedy, Peterson & Frost
420 Redcliff Dr., Redding CA 96049
(916) 222-2100