CERCLA's Easily Confused Statutes of Limitations


[author: Robert S. Sanoff]
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



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:


Foley Hoag LLP - Environmental Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.