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California v. Montrose Chem. Corp. of Cal.

ELR Citation: 27 ELR 20508
Nos. 95-55725, -55736, 104 F.3d 1507/(9th Cir., 01/17/1997) rev'd

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) three-year statute of limitations for natural resource damage (NRD) claims does not begin to run until the U.S. Department of the Interior promulgates both type A and type B regulations. Trustees of a Superfund site sought to recover NRDs for harm to the marine environment caused by releases of toxic substances and response costs for the cleanup of the site.

The court first holds that the trustees' action was timely, because the plain language of CERCLA permits the filing of a lawsuit for recovery for NRDs within three years of the promulgation of both type A and type B regulations. CERCLA §151(c) requires the President to promulgate regulations for the assessment of damages for injury to natural resources. The provision specifies that such regulations shall include both the standard procedures for simplified assessments (type A) and alternative protocols for conducting assessments (type B). CERCLA §113(g)(1)(B)'s triggering of the statute of limitations on the date on which regulations are promulgated under §151(c) refers to both type A and type B regulations. The court rejects the defendant's reliance on legislative history, holding that the statutory provisions are not ambiguous and the legislative history does not clearly indicate that Congress intended a different interpretation.

The court next holds that the record was inadequate to support the district court's finding that the releases amounted to one incident, and therefore, the defendants' liability should be capped at $50 million. "Incident involving release," as it is used in CERCLA §107(c), means an occurrence or series of occurrences of relatively short duration involving a single release or series of releases all resulting from or connected to the event or occurrence. Therefore, a series of releases over a long period of time might or might not be considered an incident involving release. The court also denied the government's request for reassignment on remand. Although the district court's references to environmental scientists as "pointy heads" and so-called experts were not as restrained as the Court of Appeals would have wished, there is no indication that the court's verbal excesses had an effect on its substantive decisions.

[Prior decisions in this litigation are published at 22 ELR 21327 and 21333, 24 ELR 20357 and 20452, and 25 ELR 20809. Briefs and pleadings in this litigation are digested at ELR BRIEFS AND PLEADS. 66424, 66439.]

Counsel for Plaintiff
John Saurenman, Deputy Attorney General
Attorney General's Office
300 S. Spring St., Los Angeles CA 90013
(213) 897-2000

Counsel for Defendants
Karl S. Lytz
Latham & Watkins
701 B St., Ste. 2100, San Diego CA 92101
(619) 236-1234

Before Bright,* Skopil and Wiggins, JJ.