Deciding statute of limitations issues in CERCLA cases is not
always a straightforward matter as the recent 54 page opinion in American Premier Underwriters Inc. v. General
Electric Company illustrates. There, a federal court in Ohio
was faced with the unenviable task of trying to determine whether
remedial actions and removal actions at four separate railroad
sites located in four different states were barred by statutes of
limitations under CERCLA and state law. Unfortunately, the court
seems to have surrendered its common sense in its close reasoning
of the facts and the case law.
Claiming that CERCLA statute of limitations issues should not be
decided on the basis of bright line tests, the court concluded that
an activity could constitute a remedial action for statute of
limitations purposes even though a Remedial Investigation had not
been completed at the time. Relying upon that flexibility, the
court found that the early implementation of oil recovery systems
at the various sites triggered CERCLA's six year statute of
limitations for remedial actions and barred claims for those
remedial costs. Strangely, however, the court went on to apply a
hard and fast rule (purportedly on the basis of a Sixth Circuit
decision) that CERCLA's three year statute of limitations with
respect to removal actions could not accrue until after a Remedial
Investigation was completed.
In the end, the court reached the truly bizarre result that
remedial actions were barred under CERCLA's six year statute of
limitations whereas removal actions at the same sites commenced
prior to those remedial actions were not barred under CERCLA's
applicable three year statute of limitations. To paraphrase Dante,
anyone entering the world of Superfund should be prepared to leave
hope and reason behind
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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