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United States v. ASARCO Inc.

ELR Citation: 29 ELR 20188
Nos. No. CV 96-0122-N-EJL, 28 F. Supp. 2d 1170/(D. Idaho, 09/30/1998)

The court holds untimely the federal government's natural resource damages (NRD) action against several mining companies regarding a contaminated area of the Coeur d'Alene Basin in Idaho. The area for which the government seeks NRD is located outside of the facility boundaries of the 21-square-mile Bunker Hill Superfund site known as the "box." The court first holds that the U.S. Environmental Protection Agency's (EPA's) hazard ranking system for placing sites on the national priorities list (NPL) does not support the government's claim that the Bunker Hill site as it is listed on the NPL includes the entire basin. The court next holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)'s special statute of limitations is open ended for any facility listed on the NPL. Under CERCLA §113(g), the special statute of limitations applies if the facility is listed on the NPL, it is a federal facility as defined by CERCLA §120, or it is a facility at which remedial action under CERCLA is otherwise scheduled. But there is no statutory or regulatory time limit on how long EPA has to determine that a site should be listed on the NPL. If the trustee fails to file an NRD action within three years of the date of the discovery of the loss and its connection with the release in question under CERCLA §113(g)(A), then the NRD trustee can still timely file an NRD action for the loss if the facility is listed by EPA on the NPL. Moreover, this interpretation is consistent with the requirement to construe CERCLA in favor of the government and consistent with the legislative purpose of the Act.

The court, however, holds that the basin is not included in the facility listed on the NPL. Therefore, the extended statute of limitations does not apply to the government's NRD claim for the basin. The term facility includes any site where hazardous waste has come to be located. EPA has consistently defined the site listed on the NPL to be the box and has not extended the boundaries of the site to the basin in accordance with regulatory requirements. CERCLA specifically limits the facilities or sites qualifying for the extended statute of limitations only to those that are listed on the NPL. To find that the NPL listing includes the basin is not a minor modification of the site description because it would expand the listing from 21 miles to at least 1,500 miles.

[Briefs and Pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66623.]

Counsel for Plaintiff
Celeste Miller, Ass't U.S. Attorney
U.S. Attorney's Office
First Interstate Center
877 W. Main St., Ste. 201, Boise ID 83702
(208) 334-9335/1211

Counsel for Defendants
Peter J. Nickles
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20004
(202) 662-6000