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California v. Neville Chem. Co.

ELR Citation: 34 ELR 20016
Nos. No. 02-56506, (9th Cir., 02/10/2004)

The Ninth Circuit holds that the statute-of-limitations period for bringing a suit for recovery of remedial action costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not accrue until after the final adoption of the remedial plan. The case arose after the state of California filed suit against a chemical company under CERCLA §107. The company argued that California's suit was barred by the statute of limitations. Specifically, it maintained that the statute of limitations began to run in April 1994 when it started excavating the extraction wells at the site. CERCLA §113(g)(2) provides that the "initiation of physical on-site construction of the remedial action" triggers the statute of limitations. The plain meaning of the definition of "remedial," read together with the statute of limitations in §113(g)(2) and the use of that same term in the rest of the statute, supports the conclusion that "the initiation of physical on-site construction of the remedial action" can only occur after the final remedial action plan is adopted. This conclusion is consistent with the results reached by every court of appeals that has considered the onset of the statute-of-limitations period for recovery of remedial action costs under CERCLA, if not with all the reasoning of those cases. Therefore, the statute of limitations in this case could not have begun to run until the final remedial action was approved on May 8, 1995. Because the state's suit was brought within six years of the approval of the remedial action plan, it was not barred by the statute of limitations. In addition, the district court correctly held that the company could not raise equitable defenses to liability under CERCLA. Nor did the district court err in finding the company responsible for all of the state's response costs. The company failed to show that the response costs were inconsistent with the national contingency plan.

Counsel for Plaintiff
Harrison M. Pollack, Deputy Attorney General
Attorney General's Office
2101 Webster St., 12th Fl., Oakland CA 94612
(510) 286-4200

Counsel for Defendant
Terry Anastassiou
Ropers, Majeski, Kohn & Bentley
333 Market St., Ste. 3150, San Francisco CA 94105
(415) 543-4800