Three recent district court cases have refined the contours for timely bringing a remedial action under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).  In all three opinions, the courts rejected arguments that preliminary or investigative activities to determine the magnitude of contamination at Superfund sites necessarily triggers the six-year statute of limitations for remedial actions under 42 U.S.C. § 9613(g)(2).

Activities to address contamination at a Superfund site are classified as either “removal actions” or “remedial actions.”  Removal actions are usually immediate and temporary responses while remedial actions generally constitute more of a long-term and permanent response to contamination.  In addition, removal actions must be brought within three years after completion of the action, while remedial actions must be brought within six years after “initiation of physical on-site construction” of the action.  42 U.S.C. § 9613(g)(2).

In the most recent decision, an intervenor insurance company argued that activities including groundwater sampling and preliminary investigative work to evaluate the scope of contamination at a clean-up site constituted remedial actions, thus triggering the six-year statute of limitations.  Dave Drilling Envtl. Eng’g, Inc. v. Gamblin, 2015 WL 6123070, at *2 (N.D. Cal. Oct. 19, 2015).  However, the court concluded that this evidence did not demonstrate that the plaintiff had actually initiated physical and permanent remedial actions to respond to the contamination.  Id. 

Similarly, in California River Watch v. Fluor Corporation, a potentially responsible party argued that physically paving over a contamination site with asphalt, as well as the construction of injection wells to minimize pollutants constituted remedial activities for purposes of the 6 year statute of limitations.  Cal. River Watch v. Fluor Corp., 2015 WL 5970175, at *2 (N.D. Cal. Oct. 14, 2015).  The court observed, however, that the dates of those activities predated the adoption of a remedial action plan.  Id. at *3.  Because “‘the initiation of physical on-site construction of the remedial action can only occur after the final remedial action plan is adopted[,]’” the activities did not trigger the six-year statute of limitations.  Id. (quoting Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 667 (9th Cir. 2004)).

Finally, last month, a defendant argued that environmental investigative reports and the separate dismantling of a gas storage tank constituted remedial actions.  Keyspan Gas E. Corp. v. UGI Utilities, Inc., No. 2:14-cv-03782, at 9 (E.D.N.Y. Sept. 4, 2015).  However, defendant’s motion to dismiss relied upon a number of documents which were outside the Complaint and the court found that these documents could not support defendant’s motion to dismiss on statute of limitations grounds.  Id. at 10.  Accordingly, the court concluded that additional discovery was needed in order to properly assess whether the plaintiff satisfied the statute of limitations.  Id.