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Avoiding the Contribution “Catch-22”: CERCLA Administrative Orders for Cleanup Are Civil Actions

September 2016

Citation: ELR 10791

Author: Alfred R. Light

Under CERCLA, nonsettling parties and EPA take the position that the statute of limitations for a right of contribution can be triggered whenever the agency and a potentially responsible party sign an administrative order on consent (AOC). Although the overall costs of the settlement are not set, this view is that the statute of limitations expires three years from the signing of the order no matter how long it takes to fully comply with the order. This amounts to an AOC recipient’s “Catch-22” and is an incorrect interpretation of the statute. This Article concludes that, to the contrary, contribution under CERCLA does not depart from the approach of most other contribution actions in tort: The statute of limitations does not begin to run until after actions called for in an administrative order (AO) are completed or costs paid. This resolution, however, turns on the conclusion that all AOs for cleanup under CERCLA §106 are “civil actions” within the meaning of CERCLA §113(f)(1).

Alfred Light is Professor of Law at St. Thomas University School of Law.

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