Enforcing CERCLA’s Three Year Statute of Limitations for Removal Actions

Although courts are sometimes reluctant to enforce them, there really are hard stops in CERCLA, particularly the three year statute of limitations for recovery of costs incurred in a removal action.  In Commonwealth of Pennsylvania Department of Environmental Protection v. Beazer East, Inc., the Third Circuit recently affirmed the dismissal of a CERCLA cost recovery action by the State of Pennsylvania on the basis of the three year limitations period for removal actions.   There, the state had undertaken over $3 million of response actions at a Superfund site in 2004 but delayed until 2009 in commencing a cost recovery action.  The federal district court dismissed the action on statute of limitations grounds.

In an effort to come within CERCLA’s six year statute of limitations for “remedial actions”, the state argued that the work it had done in 2004 had effected a permanent solution and thus should come within the six year statute of limitations for remedial actions.  The Third Circuit rejected this effort at revisionism, noting that the state in 2004 had expressly characterized the work as a removal action.  The court also pointed to CERCLA case law holding that work which was undertaken as a removal action could not be redefined  post hoc as a remedial action simply because the work turned out to provide a permanent remedy.

In the earlier generations of Superfund jurisprudence, courts were willing to blink away procedural impediments to CERCLA cost-recovery claims, presumably on the theory that anything that could be done to effect environmental cleanups should be done.  As this case indicates, courts are far less willing today to circumvent the formal procedural rules in CERCLA.