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