Mola Development Corp. v. United States

No. CV 82-819-RMT(JRx) (C.D. Cal. July 30, 1985)

The court rules that § 112 of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA), which provides for a three-year statute of limitations from the later of the date of "discovery of loss" or December 11, 1980 for presentation of a claim or action for damages, does not apply to private actions for recovery of response costs. The court gives two reasons for its ruling. First, the court concludes that the time of "discovery of loss" does not suffice for accrual of a claim for response costs, since plaintiff must have incurred response costs after discovering the loss. Therefore, the court holds that a statute of limitations for response costs actions may begin to run no earlier than when plaintiff has incurred response costs. Second, the court looks to the definitions of "claims," "damages," and "response" under CERCLA and finds that while § 112(d) provides a statute of limitations for presentations of claims and commencement of actions for damages, it is inapplicable to plaintiff's action for response costs. Analogous statutes of limitations are three years under both CERCLA § 112(d) and § 338(1) or § 338(9) of the California Code of Civil Procedure. The court adopts this time frame, and holds that the three-year statutory period commenced upon plaintiff's cleanup of the hazardous waste, and is not tolled to a later date of discovery of the identity of defendants. The court further holds that whether or not plaintiff's cleanup was consistent with the national contingency plan is an issue of fact, more appropriately addressed at trial or by way of summary judgment than by the court in a motion to dismiss.

Finally, the court holds that the three-year statute of limitations in California Code of Civil Procedure § 338(2) bars plaintiff's negligence and equitable indemnity actions for damages in having to clean up hazardous waste from the property, and in being unable to develop the land during the cleanup period, since the statute commenced to run in 1981.

Counsel for Plaintiff
Rivers J. Morell
Morell & Fields
1666 N. Main, Suite 340, Santa Ana CA 92701
(714) 973-0909

Counsel for Defendant
Stephen T. Swanson, Kenneth L. Waggoner
Lawler, Felix & Hall
700 S. Flower St., 30th Floor, Los Angeles CA 90017
(213) 629-9306

[15 ELR 21029]

Bailey, J.:

Order Denying Motion To Dismiss Fourth Cause of Action and Granting Motion To Dismiss Fifth Cause of Action

This matter has come before the court on the motion by defendants Union Oil Company of California; Shell Oil Company; Texaco, Inc.; and Chevron U.S.A., Inc. to dismiss plaintiff's fourth amended complaint as against them. The fourth amended complaint alleges two causes of action against these defendants: The fourth cause of action for damages based on the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. ("CERCLA"); and the fifth cause of action based on state law of indemnification and/or tort.

In this motion to dismiss, defendants contend that plaintiff's CERCLA claim is barred by the statute of limitations. The only statute of limitations provided in CERCLA is found at 42 U.S.C. § 9612(d), which provides for a three-year statute from the later of the date of discovery of loss or December 11, 1980, for presentation of a "claim" or commencement of an action for "damages." It appears that § 9612(d) does not provide a statute of limitations for a private action for recovery of costs of response, which is the type of action we have herein, for the following reasons:

(1) Under § 9612(d), a cause of action accrues upon the "discovery of loss." However, with an action for costs of response, discovery of a loss is not sufficient for a claim because a plaintiff must have, after discovering the loss, incurred the cost of responding. As such, a statute of limitations for a cost of response action must begin to run no earlier than when plaintiff incurs the cost of response.

(2) § 9612(d), expressly, only provides a statute of limitations for presentation of "claims" and commencement of an action for "damages." Throughout CERCLA, the term, "claim," is used consistently as claim for reimbursement against the Hazardous Substance Response Fund ("Superfund"). The term, "damages," is used consistently and expressly defined as damages for injury to natural resources. 42 U.S.C. § 9601(6). The term, "response," is expressly defined as "remove, removal, remedy, and remedial action." 42 U.S.C. § 9601(25).

This court therefore finds that, based on the language used in CERCLA, § 9612(d) does not provide a statute of limitations for plaintiff's cause of action for costs of response. Reference to legislative history does not indicate any congressional intent from which to infer an intent other than the logical interpretation from the language used.

As such, this court must apply an analogous statute of limitations. Whether this court looks to federal law, as the Supreme Court did in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), or to to state law, the result is the same. This court finds that the most analogous federal statute of limitations is three years under 42 U.S.C. § 9612(d) and that the most analogous state statute of limitations is three years under either § 338(1) or § 338(9) of the California Code of Civil Procedure.

This court further finds that this three-year statutory period commenced upon plaintiff's cleanup of the hazardous waste and [15 ELR 21030] is not tolled to a later date of discovery of the identity of the defendants. Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981).

It appears that the statute commenced in 1981, as plaintiff argues in its opposition at page 17 lines 4 through 6. However, from the face of the complaint, this court cannot find, as a matter of law, that the cleanup under the CERCLA cause of action occurred in 1981. If the cleanup occurred in 1981, the three-year statute of limitations would have run. The fourth amended complaint, as against these moving defendants, does not relate back to the date of the original complaint because these moving defendants did not receive notice of this litigation prior to service of the fourth amended complaint.

Defendants also contend they are entitled to dismissal because plaintiff's cleanup was not consistent with the national contingency plan. Whether defendants are correct or not is an issue of fact. The determination of such an issue is not appropriate on a motion to dismiss because it would require this court to make findings of fact while a motion to dismiss is only a challenge to the face of the complaint. Clearly, plaintiff's CERCLA cause of action is sufficient to state a claim. Whether or not plaintiff might factually prevail is a matter more appropriately addressed at trial or by way of summary judgment.

Plaintiff's fifth cause of action for damages in having to clean up hazardous waste from the property and in being unable to develop the land during the cleanup period is based on a theory of negligence and equitable indemnity. The applicable statute of limitations is three years pursuant to California Code of Civil Procedure § 338(2). From the face of this cause of action, it is clear that the statute commenced to run in 1981 and, therefore, bars this cause of action.

Accordingly,

IT IS ORDERED that the motion by defendants Union Oil Company of California; Shell Oil Company; Texaco, Inc.; and Chevron U.S.A., Inc. to dismiss plaintiff's fourth amended complaint as against them is denied as to the fourth cause of action and granted as to the fifth cause of action.